A techno legal analysis of admissibility of digital photographs as

International Journal of Law

ISSN: 2455-2194

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Volume 3; Issue 5; September 2017; Page No. 13-18

A techno legal analysis of admissibility of digital photographs as evidence & challenges

Aratrika Chakraborty,

Anuradha Parihar

Assistant Professor, Amity Law School, Amity University Kolkata, West Bengal, India

LLM (Cyber Law and Cyber Security), National Law University Jodhpur, Rajasthan, India

Abstract

With the advent of technology, Digital photographs have been able to replace the analog photographs. The concept of photographs

was they were captured and required representation on a film or paper. But now the traditional photographs have been replaced

with new digital photography where the whole concept of concept of capturing or storing of images is different from the traditional

one.

Keeping in view the technology employed in capturing and storing of these digital photographs with the traditional analog images,

the rules of admissibility in a court if law differ. Thus, it has to be studied how digital photographs can be made admissible in the

court as evidence and the rules corresponding to the same. Time and again photographs have been taken as evidence in the justice

delivery system but the question which needs to be addressed is how photographs are made admissible as evidence in the court. In

order to answer these questions the provisions of Indian Evidence Act, 1872 in consonance with the Information Technology Act

2000 needs to be studied.

This paper attempts to analyze the principles and some important cases with regard to the authenticity of digital photographs as

evidence.

Keywords: digital photograph, admissibility, storing of images

1. Introduction

Pictures are more demonstrative than other documents and can

have a greater impact they have been used as a piece of

evidence in the courts. The concepts of photographs have also

changed with time from traditional analog photographs to the

modern day digital photographs. The concept of photographs

was they were captured and required representation on a film

or paper. But now the traditional photographs have been

replaced with new digital photography where the whole

concept of concept of capturing or storing of images is

different from the traditional one.

1.1 Digital Photographs- Technology and Storage

A computer to if understood technically can be said to be an

electronic device which holds a collection or circuits or

switches. The computer understands only two things viz.

when the circuit is on and when the circuit is off. Thus,

computer does not understand the normal user understandable

language instead it only understands the language of zeroes

and ones which is popularly known as the Binary language.

The computer stores information in the form of numbers viz.

zero and one which in the binary form are called bits. Any

information can be stored or processed only of it is digitized.

A computer can store data in two ways: firstly in the primary

memory which is the RAM (Random Access Memory);

secondly on the magnetic, optical media.

Now moving on to the concept of digital photographs they can

be said to exist in the digital form. This would mean that these

photographs do not require any film or paper for their

generation or storage. The traditional photographs required

some kind of analogous representation which is absent in the

digital photographs. These photographs are stored in the bits

of information known as binary form. Digital photographs are

captured in the digital cameras by mapping the scene or image

in a grid where different cells are provided with different

specifications like intensity of the color etc. An image can be

digitized by either scanning an analog image into the

computer or a picture can be taken by a digital camera itself.

A digital camera looks like a conventional camera itself but

the technology employed is different in both. A digital camera

contains a sensing apparatus within which calculates numeric

value assigned to each pixel.

A digital photograph is substantially different from the

conventional photographs as one of the benefit digital

photographs is that they can reproduced without any

substantial loss in the quality of the photograph which is not

the case with the analog image. Since, the image is stored

numerically thus the reproduction of any such image would

keep the quality of the image intact in both the copy and the

original. Also, even while making slight alterations in the

image the copies made previously will maintain their

authenticity. Also even after this the photographs will remain

in the form of numbers meaning in the binary form.

Since the there exists an ease to manipulate digital

photographs the court has taken approach where witnesses are

sought to provide their opinion over the authenticity of the

photographs. The witnesses testify with respect to the fact that

the photographs has not been tampered with, in this regard a

lot of things come into picture which need to be analyzed like

the metadata with respect to the picture etc. A digital

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photograph requires a chain of custody form which either

proves that the image is original and unaltered or the details of

the people who have held the image and the list of alterations

made time and again. There is another issue which is

addressed by the judiciary in admitting digital photographs as

evidence is what should be considered to be “original” copy of

the image. Thus at times it has meant to mean the original

image if the image in the camera itself is placed before the

without any alterations but even a slight manipulation

disqualify it to be original.

1.2 Admissibility of photographs as evidence

As it has been already mentioned photographs are considered

to be more explanatory in nature or a better of depicting

something. Therefore, time and again photographs have been

taken as evidence in the justice delivery system but the

question which needs to be addressed at this juncture is how

photographs are made admissible as evidence in the court. In

order to answer these questions the provisions of Indian

Evidence Act, 1872 need to be studied.

Section 62, section 63 and 64 deal with the prove of contents

of a document and they can be done either by primary or

secondary evidence.

Section 62 of Indian Evidence Act, 1872 states that primary

evidence means the document itself is placed before the court.

“Primary evidence means the documents itself produced for

the inspection of the Court.

Explanation 1—Where a document is executed in several

parts, each part is primary evidence of the document:

Where a document is executed in counterpart, each

counterpart being executed by one or some of the parties only,

each counterpart is primary evidence as against the parties

executing it.

Explanation 2- Where a number of documents are all made by

one uniform process, as in the case of printing, lithography, or

photography, each is primary evidence of the contents of the

rest; but, where they are all copies of a common original, they

are not primary evidence of the contents of the original.”

So it can be said that if a photograph if taken and placed

directly before the court then it is meant to be primary

evidence. But there can be instances where photographs can

be said to be secondary evidences also like if the copies are

created from the negative of a photograph.

Section 63 deals with secondary evidence:

“Secondary evidence means and includes—

1. Certified copies given under the provisions hereinafter

contained;

2. Copies made from the original by mechanical processes

which in themselves ensure the accuracy of the copy, and

copies compared with such copies.

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did

not execute them;

5. Oral accounts of the contents of a documents given by

some person who has himself seen it.”

Thus photographs of the evidence in original are considered to

be secondary evidence. Also photographs can be admitted

wither as substantive or demonstrative evidence. Photographs

are considered as documents under the evidence act

[1]

Substantive evidence is when an evidence proves a fact in

issue while demonstrative evidence is when helps to

understand the difficult concepts in a case. Thus, if

photographs are been taken as substantive evidence then in

that case the witness need to testify that the photograph

portrays the scene fairly and accurately. Thus, oral evidence in

case of photographs is admissible if they are secondary in

nature.

2. Determining the authenticity of Digital Photographs

In today’s technology driven world the concept of digital

photography has come into practice thus nowadays digital

photographs have replaced the traditional analogue

photographs. Since the entry of these new digital technology

relating to photography a lot more aspects and issues have

arisen which need to be taken into account and at no instance

be ignored. The digital photographs along with its high quality

has brought with it the high chances of manipulation in

photographs and this has forms the part of concern of the

court. These digital photographs since remain in the form of

numbers they can be easily altered by way of adding,

removing or replacing some of the information. It has been

seen and is a common practice where camera man himself

makes changes in the photographs and removes features not

required. Thus it can be seen that there can be accidental and

intentional manipulation of images. Accidental covers those

instances like where the storage media of the image is

mishandled and as a result of which the image is altered while

intentional manipulation of images is when certain elements

are removed or added in an image willing like when

alterations made by the photographer or the editor in the color

contrast of the picture for purely innocent purposes.

Thus keeping in view the above scenario court has issues in

admitting digital photographs as evidence and thus it requires

testimony of the witnesses to prove the contents but it does not

resolve the issues as the testimony itself can be doubted. So,

these photographs require a thorough expert analysis. These

photographs while being admitted has to go through all the

necessary requirements for the admissibility electronic

evidence.

With the introduction of digital cameras, there needs to be a

stronger requirement of establishment of authenticity to make

digital photographs admissible as evidence. Digital

photographs pose new issues to the traditional rules of

evidence. Though it may appear to be the same as traditional

photographs but they are a totally different class of evidence.

The digital photographs can be copied any number of times

and there is no way to actually distinguish the original from

the duplicate one. There may be advertent or inadvertent

alterations and it is very difficult to establish the authenticity

and that there has been no tampering with the original

photograph.

The standard of authentication depends on what purpose the

digital photograph is being admitted as evidence. It can be

used as substantive evidence or demonstrative evidence.

Substantive evidences are used prove directly some facts and

demonstrative evidence are used to make something clear or

understandable by visually depicting something like X-rays or

maps and charts.

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2.1 Authentication for substantive Evidence

When authentication for presenting it as a substantive

evidence is done the requirements are much more stringent. It

has to be proved that it is in the same condition as the original

and there has been no tampering. The court relies on the

testimony of witnesses that there has been no tampering with

the photographs. For the purpose of authentication of a

photograph a witness needs to testify that this is an accurate

representation of the original. But this testimony may be

problematic because either the witness may be examined after

many years the photograph was taken, or there may be also

chances that the witness may not even know or realize that the

photograph has been changed.

 Chain of Custody: The chain of custody form may be

required to establish he authenticity of the digital

photographs. Through a chain of custody form it can be

seen the entire log of who handled those digital

photographs and for what purpose.

 Best evidence rule: The federal rules of Evidence in US

require any photograph which is used as a substantive

evidence to be in original. This is known as the best

evidence rule. So for digital photographs this means that

only if the photos are directly taken from the disk drive of

the camera itself. However this is not practically possible

in most cases, Most of the times it is taken in CDs, or

printouts are taken and exact copies can be made of

digital photographs without any loss in quality or

modification. So the notion of original under the federal

rules seems obsolete as far as digital photographs are

concerned.

 Metadata for authentication: For a typical document, it

includes, inter alia, the name of a file, its location on the

computer‘s hard drive, the file extension, dates of creation

and modification, and names of users who have

permission to open or alter a file

[2]

. The metadata of an

image that a digital camera records can include the

dimensions of the image, the file size and location, the

make and model of the camera used to take the

photograph, the focal length and ratio, exposure time, and

the dates the photo was taken, last modified, and last

opened. Some cameras even have internal GPS chips that

record the precise location the picture was taken.

The metadata can serve as important for authentication

purposes. The date and time stamping in the camera can

establish the proof of fact in issue. However the metadata is

not entirely dependable for it can be easily altered or it may

not have been saved as accurate in the first place. There can be

instances where the date and time of the camera are already

set incorrectly in the first place another case is when an image

is transferred from the camera to the computer then it reflects

the date and time when the image was created in the computer

not the original date of creation in the camera. Merely opening

or resaving the image file also changes dates in the metadata

of the image.

Recent digital cameras have built-in GPS receivers which it

possible for the camera to record where exactly a photo was

taken. This positioning information (latitude, longitude) can

be stored in the Exif metadata header of JPEG files. Tools

such as jhead can display the GPS information in the Exif

headers. External GPS device can also be connected to the

digital camera

[3]

 Hash Value- By using certain algorithms like MD5 and

SHA hash value which is a fixed bit length outcome of

the original file can be checked with the copy later made.

If the original digital photograph’s hash value is

calculated and whenever a copy is made using computer

then both their hash values can be compared. Even the

slightest change would alter the hash value so this can be

used to establish the authenticity of the digital

photographs.

2.2 Authentication for demonstrative evidence

When using the digital photographs as demonstrative evidence

then the rules are even more relaxed. Demonstrative evidence

implicates neither the best-evidence rule, nor chain-of-custody

requirements. The danger of fraudulent photographs being

admitted as reliable, authentic evidence resents a looming and

perplexing dilemma for the legal system

[4]

3. Admissibility of digital photographs

3.1 Digital Photographs as Primary Evidence

If the device itself which is storing the electronic evidence is

brought before the court then it will be primary evidence and

so it will be admitted under S. 62 and not S. 65B.

Under S. 62 of the evidence act the Primary evidence means

the document itself produced for the inspection of the Court.

As per S. 65 gives the conditions for admitting secondary

evidence.S. 65 A and S. 65 B was inserted after this, so this

clearly indicates that the electronic evidence is admitted as

secondary evidence, not primary evidence.

The media itself in which the recording is made is itself

brought before the court then it is primary evidence under S.

62.

If there is a digital photograph stored in a digital camera it is a

document within the meaning of S. 3 of the evidence act.

S. 3 of the evidence act says that [all document including

electronic records produced for the inspection of the Court,

such statements are called documentary evidence;

S per S 2 (t) of the IT Act electronic record is defined as

“(t) "Electronic Record" means data, record or data

generated, image or sound stored, received or sent in an

electronic form or micro film or computer generated micro

fiche;”

Electronic form is defined in S. 2 (r) of IT Act, 2000:

“Electronic Form with reference to information means any

information generated, sent, received or stored in media,

magnetic, optical, computer memory, micro film, computer

generated micro fiche or similar device;”

Digital photographs stored inside the digital camera itself is an

electronic record under S. 2(t) of the IT Act, It is images

stored in an electronic form, so this is a “document” under S.

3 of the Evidence Act and can be produced as a primary

evidence under S. 62 of the Evidence Act.

3.2 Digital photographs as secondary evidence and S. 65B

of Information Technology Act, 2000

If the digital photograph is printed, then it becomes creation of

an electronic record produced from the digital camera itself pr

produced with the help of a computer, where a printout is

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taken or it is stored in some media as Cds, DVDs or

pendrives. This becomes a secondary digital evidence and

then S. 65 B needs to be complied with. Then the functionality

of such computer needs to be established and the person who

has transferred these photographs and produced them needs to

certify.

Functionality test under S. 65 B(2)

S 65 B(2) gives the technical conditions for admissibility

“(2) The conditions referred to in sub-section (1) in respect of

a computer output shall be the following, namely:-

a. the computer output containing the information was

produced by the computer during the period over which

the computer was used regularly to store or process

information for the purposes of any activities regularly

carried on over that period by the person having lawful

control over the use of the computer;

b. during the said period, information of the kind contained

in the electronic record or of the kind from which the

information so contained is derived was regularly fed into

the computer in the ordinary course of the said activities;

c. throughout the materiel part of the said period, the

computer was operating properly or, if not, then in

respect of any period in which it was not operating

properly or was out of operation during that part of the

period, was not such as to affect the electronic record or

the accuracy of its contents; and

d. the information contained in the electronic record

reproduces or is derived from such information fed into

the computer in the ordinary course of the said

activities.”

Non-technical qualifications under S. 65B(4)

S. 65 B(4) gives the non-technical qualifying conditions for

admissibility of the Secondary digital evidence.

“(4) In any proceedings where it is desired to give a statement

in evidence by virtue of this section, a certificate doing any of

the following things, that is to say,-

a. identifying the electronic record containing the statement

and describing the manner in which it was produced;

b. giving such particulars of any device involved in the

production of that electronic record as may be

appropriate for the purpose of showing that the electronic

record was produced by a computer;

c. dealing with any of the matters to which the conditions

mentioned in sub-section (2) relate, and purporting to be

signed by a person occupying a responsible official

position in relation to the operation of the relevant device

or the management of the relevant activities (whichever is

appropriate) shall be evidence of any matter stated in the

certificate; and for the purpose of this sub-section it shall

be sufficient for a matter to be stated to the best of the

knowledge and belief of the person stating it.”

Since in most of the cases the digital camera itself is not

produced before the court, either a printout is taken or it is

stored in some media like some CDs/ DVDs are prepared. So

a person who was responsible in handling of the digital

camera and who took the photograph and transferred it to the

media needs to certify that how the printout or storage was

done and the functionality requirements under S. 65 B (2) was

complied with.

In the case of FIR No. 460/14 : State V/s Mahender : PS

Sultan Puri

[5]

where an alibi was sought o be established by

the defence witness in a rape case, the Delhi district court

observed the requirements for the admissibility of digital

photographs taken by a digital camera.

The defence witness Ms Versha who claimed to be the

girlfriend of the accused stated that the accused was with her

at India Gate during the time of the alleged offence by the

accused. She testified that from 2 PM to 6 PM the accused

was with her and the photographs were taken at 6 PM. For this

purpose she placed two digital photographs before the Court

which was taken from a digital camera by a private

photographer.

The GPS data and the metadata could be used as a proof for

the alibi by the defence but the court in this case held that

these digital photographs were not admissible. The private

photographer was not traced and no certificate under S. 65 B

was produced before the court.

The Court relying on Anwar v Basheer

[6]

held that the

photographs were not admissible because the witness could

not be produced and the digital photographs being Secondary

evidence under S. 65 B had to be complied with a certificate.

Only if the original evidence as such is placed then there are

no requirements under S. 65B.

3.3 Section 45A of the Evidence Act and expert opinion

In India, in S.45A of the Evidence Act, Expert’s opinion is

sought when genuineness of an electronic record is

questioned.

“Opinion of Examiner of Electronic Evidence. —When in a

proceeding, the court has to form an opinion on any matter

relating to any information transmitted or stored in any

computer resource or any other electronic or digital form, the

opinion of the Examiner of Electronic Evidence referred to in

section 79A of the Information Technology Act, 2000 (21 of

2000) is a relevant fact. Explanation. —For the purposes of

this section, an Examiner of Electronic Evidence shall be an

expert;”

As per S. 22A of the evidence Act oral evidence as to contents

of an electronic records is admissible only if its genuinity is in

question.

The digital photographs can be admitted as primary evidence

itself if the digital camera is brought before the court. If its

genuity is in question after it being admitted as primary

evidence under S. 62 of the Evidence act then expert opinion

under S. 45 A of the evidence act can be admissible.

But if a digital photograph is admitted as a secondary

evidence then as per the case of Anvar P.V. v P.K. Basheer &

Ors

[7]

, If a secondary electronic record fulfils the conditions

of S. 65B, then expert opinion under S.45A can be sought. As

per Para 17 of the judgment

“17. The Evidence Act does not contemplate or permit the

proof of an electronic record by oral evidence if requirements

14 Page 15 under Section 65B of the Evidence Act are not

complied with, as the law now stands in India.”

So when a printout of the digital photograph is brought or the

media in which it is recorded is sought to be admitted as

secondary evidence then expert opinion can be sought only

when a certificate under S. 65 B is given.

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4. Federal Rules Of Evidence In USA For Authentication

In order to make any documentary evidence admissible the

Authentication has to be established. In US the Federal Rules

of Evidence, Rule 901 provides for the authentication of an

item of evidence sufficient requirements have to be met to

support the claim that it is genuine or authentic.

The relevant parts of Rule 901 is

“ Rule 901. Authenticating or Identifying Evidence

a. In General. To satisfy the requirement of authenticating

or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the

item is what the proponent claims it is.

b. Examples. The following are examples only — not a

complete list — of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an

item is what it is claimed to be.

(3) Comparison by an Expert Witness or the Trier of Fact. A

comparison with an authenticated specimen by an expert

witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance,

contents, substance, internal patterns, or other distinctive

characteristics of the item, taken together with all the

circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s

voice — whether heard firsthand or through mechanical or

electronic transmission or recording — based on hearing the

voice at any time under circumstances that connect it with the

alleged speaker.

(9) Evidence About a Process or System. Evidence describing

a process or system and showing that it produces an accurate

result.”

So when a digital photograph is admitted then opinion of a

witness, or an expert is important to make it admissible. Also

as per Rule 901(b)(9) a process or system which produces a

particular result whether that process is accurate also can be

proved by relevant evidence.So when a digital photograph is

printed or produced using a computer, the process has to be

established as authentic.

4.1 Expert Opinion for Authentication

Rule 702 of the Federal rules talk about the Expert opinion.

“Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

a. the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and

methods; and

d. the expert has reliably applied the principles and methods

to the facts of the case.”

4.2 State Of Connecticut V. Alfred Swinton

[8]

This case has given new dimensions to the admissibility and

authentication of the digital evidence. Though this judgment is

binding on the state of Connecticut but can be immense to

other states while dealing with digital evidence. In the present

case the defendant Alfred Swinton was convicted for the

murder of a 28 year old woman. The dead body of the girl was

discovered in a partially dressed state, some bite marks were

also found on her breasts. Thus, digital photographs were

produced as evidence of the marks on the body of the

defendant in order to prove that those bite marks was of the

defendant.

The photographs of the bite marks were cleared using an

image-enhancing software called Lucis. Then these images

were compared with the bite-pattern of the defendant by

super-imposing over the photographs of the bite-marks using

Adobe Photoshop. Swinton appealed on the basis that the

images were improperly admitted because of the use of Lucis

and Adobe Photoshop.

In order to analyze Swinton’s claims the court followed a six-

factor test which is illustrated below

[9]

1. The computer equipment is accepted in the field as

standard and competent and was in good working order,

2. Qualified computer operators were employed,

3. Proper procedures were followed in connection with the

input and output of information,

4. A reliable software program was utilized,

5. The equipment was programmed and operated correctly,

and

6. The exhibit is properly identified as the output in question

The court came up with the principles for authentication

standards for the computer-generated evidence and applied

then in two parts of evidence: the photographs enhanced

through Lucis and Adobe Photoshop. The Court defined Rule

of Law and applied the rule on the two pieces of evidence

a) Lucis-Enhanced Photographs: The testimony of a

forensic scientist was used in order to admit these

photographs. The Court applied the six-factor test to the

testimony of the forensic scientist and concluded that the

digitally enhanced photographs were sufficiently

authenticated. Court observed that:

 The computer equipment used was the standard

equipment;

 Through the experience and training of the witness and

presence of Karazual proves that the enhancement was

produced by a qualified computer operator;

 Proper input and output procedures were followed;

 Lucis was a reliable software program

b) Adobe Photoshop Overlays: this part analyzed the

testimony of Karazulas for the evidence created by Adobe

Photoshop. His testimony was based on four levels of

bitemark comparison:

 molds that demonstrated unique characteristics;

 regular photographs that allowed the deduction of the

victim and assailant’s positioning;

 a comparison of the molds and the photographs; and

 Adobe Photoshop-enhanced overlays.

The Court held that the testimony here was insufficient to

prove that the authentication was made in a proper manner

because he failed to prove five out of the six factor test.

5. Conclusion

Since the technology of digital photographs is comparatively

new, rules of authentication and admissibility are also

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evolving and judicial decisions are helping to set the standards

regarding the admissibility of Digital photographs as

evidence. Digital photographs are electronic records in

electronic form so there needs to be proper amendments in

existing laws to accommodate the insertion of digital

photographs in the ambit of evidences pertaining to electronic

form. In US as the case of State v. Swinton

[10]

has been a

landmark decision in determining the authentication and

admissibility principles of digital photographs, In India as of

now Anvar v. Basheer

[11]

stands as the law and S. 65 B

requirements have to be met for admitting the digital

photographs in court.

References

1. See, Section 3 of Indian Evidence Act, 1872

2. Case Blurb: Lorraine; Authenticating ESI Under FRE

901(b)(4) by Examining Metadata, 2007. available

at,http://postprocess.wordpress.com/2007/09/18/case-

blurb-lorraine-authenticating-esi-under-fre-901b4-by-

examining-metadata/

3. Emerick D. Jobo announces GPS digital camera add-on,

2008. available at, http://emerick.blogspot.com/

2008_02_01_archive.html

4. Zachariah B Parry. Digital Manipulation and

Photographic Evidence: Defrauding Courts One thousand

words at a time, Journal of Law, Technology & Policy,

2009.

5. DOD: 22.07.2015, (Sessions Case No. 111/14), Unique

ID case No.02404R0166232014

6. Civil Appeal No. 4226/2012 (DOD: 18.09.2014)

7. Ibid

8. Case: 847 A.2d 921( Conn. 2004)

9. Supra note 3

10. Supra Note 8

11. Supra Note 6