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Can this photo be trusted? Digital photos can be enhanced to help jurors - or manipulated to mislead them. Use your digital images carefully, and know when to challenge your opponent's.

Article Excerpt
We gave them to our children as Christmas presents last year. My wife bought a new one before she took her trip to China a few months ago. Digital cameras--they're so popular you even can buy disposable ones.

Moviemakers construct digital images on theater screens when they want to depict something that didn't or couldn't happen. If a crash scene is too dangerous for Tom Cruise or even a veteran stuntman, digital images create the effect. When George Lucas wants to show how a Sith lord wields telekinetic powers in a Star Wars film, digital imagery comes to the rescue. Once the image is converted into dots or "pixels," Hollywood can work its magic.

Digital photography is also finding its way into our everyday lives. Major retailers--including Blockbuster video stores and Kroger and Piggly Wiggly supermarkets--are testing digital finger-identification payment systems in which customers place a finger on a scanner at the counter. A spokesperson for Piggly Wiggly said the company has tentative plans to implement the new system at 120 stores within the next few years.

Digital fingerprint technology is already in widespread use in the public sector. About 47 million criminal fingerprints were entered into the FBI's Integrated Automated Fingerprint Identification System and its affiliated state and local systems by 2005. (1) These are fast, computerized identification systems, and most of them rely heavily on digital image processing.

The products of the technology, digital images, are offered as evidence in a growing number of civil and criminal trials in three different situations: images that were originally captured using a digital camera, images taken with a traditional 35 mm film camera and later converted into digital ones, and images taken with a conventional camera and then digitally "enhanced."

In the past, an attorney might have been content to offer a simple enlargement of a traditional, 35 mm film photograph at trial. Enlargement is a multiplication process that merely increases the size of the photograph. Today, a lawyer is more likely to introduce a digitally enhanced photograph. Digital conversion itself is a subtractive process, and image enhancement consists of removing, inserting, or highlighting an aspect of the photograph that the technician wants to change.

For example, suppose that in a civil case, a shadow on a 35 mm photograph obscures the name of the manufacturer of an offending product. The plaintiff might offer an enhanced image, magically stripping the shadow to reveal the defendant's name. Or suppose that a critical issue is the visibility of a highway hazard. A civil defendant might offer an enhanced image of the stretch of highway to persuade the jury that the plaintiff should have perceived the danger ahead before reaching it.

In many criminal trials, the prosecutor offers an "improved," digitally enhanced image of fingerprints discovered at the crime scene. The digital image reveals incriminating points of similarity that the jury otherwise would never have seen.

To date, courts have been receptive to digital photographs in all three fact situations. However, some skeptical...

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