17.7 - B. Digital Photography And Recordings

• Jurisdiction: New York

B. Digital Photography and Recordings

Mobile electronic devices, such as laptops, smartphones, and tablets, have enabled individuals to create and transmit huge quantities of digital information. With the widespread proliferation of these devices, millions of people now regularly create documentation that may become demonstrative evidence, including digital photographs and video and audio recordings. Massive quantities of such information may be easily stored and accessed using cloud services. At the same time, social media sites have transformed the way people communicate, enabling the documentation of complex relationships in a constantly changing array of video, audio, and photographic images.

The proliferation of digitally created evidence, particularly through the use of mobile devices, has created challenges for courts as they decide how to properly authenticate digital information under the current judicial rules and procedures. Although the basic legal requirements for establishing a foundation for admissibility of evidence in New York courts are well-established, their applicability to digital data and devices from which electronic evidence is generated raises many difficult evidentiary issues and questions.²⁹¹² Consequently, courts have applied varying admissibility standards when computer-generated information and digital images are presented in court.

The N.Y. Court of Appeals has found no distinction between digital and conventional photographs with regard to the definition of photograph under a criminal statute. In People v. Fraser,²⁹¹³ the defendant was convicted of possessing child pornography based on graphic images on his computer. The Court said that defining “digital computer images as photographs falls within the plain and natural meaning” of the child pornography statute’s definition of photographs. Further, those computer images were either photographs “converted to digital images by a scanner or taken by a digital camera.”²⁹¹⁴

Other New York courts have since interpreted Fraser as finding no consequential difference, legal or otherwise, between digital and traditional photographs. In People v. Kent, for example, the Second Department held that “the statutory definition of ‘performance,’ which includes any ‘motion picture’ or ‘photograph’ [under the penal code], is interpreted to encompass any ‘digital computer image.’”²⁹¹⁵ And in People v. Garing, the County Court for Suffolk County observed that Fraser “makes clear that computer images stored on the hard drive of a computer are covered within the plain meaning of ‘photograph’ as defined [in the penal code].”²⁹¹⁶

Federal courts and courts in other states have similarly admitted digitally recorded video and images recorded by electronic handheld devices. In United States v. Schaffer,²⁹¹⁷ the U.S. District Court for the Eastern District of New York permitted the prosecution to introduce portions of four videos recovered from the defendant’s electronic devices as evidence of his prior sexual assaults on two minor girls.²⁹¹⁸

In Commonwealth v. Nunez,²⁹¹⁹ involving an appeal from an order granting the defendant’s motion to suppress a statement made to a police officer during a vehicle stop, the trial court had permitted the defendant to introduce at the suppression hearing “a depiction of the level of tint in the windows of the vehicle by way of a cell phone photograph which was later printed out.”²⁹²⁰ On appeal, the prosecution argued that the printed photograph was not introduced at the suppression hearing and that its admission was improper. In confronting the issue, the Superior Court of Pennsylvania noted the absence of any case law regarding “the propriety of introducing a photograph in the form of a screen on an electronic device and subsequently adding a paper print of the photograph to the record.”²⁹²¹ The court nevertheless deemed the photograph admissible, finding that, although the record was unclear as to when the trial court received the print of the photograph, the trial court had made its determination based on viewing the photo as presented on the cell phone, and the prosecution had neither objected to its admission nor claimed that it was prejudiced by the print of the photograph. ²⁹²²

Notwithstanding the cases described above, courts in multiple jurisdictions have increasingly come to recognize that the authentication of photographs has been complicated by the advent of digital photography. As one court explained, digital photographs “present unique authentication problems because they are a form of electronically produced evidence that may be manipulated and altered.”²⁹²³ Widely available computer software programs, such as Adobe Photoshop, can be used even by amateurs to remove people or objects from photographs.²⁹²⁴ Although most doctoring leaves cognizable traces, professionals may be able to alter photographs in ways that leave little or no evidence that the photograph has been tampered with.²⁹²⁵

Few New York courts have addressed the admissibility of photographs uploaded onto social networking websites and later printed out as hard copies. In People v...