The Federal Rules of Evidence do not provide any implicit procedural statements concerning digital photographs, only providing a general definition of a photograph, which has left state courts to decide on rules concerning admissibility (Levy-Sachs & Archambault, 2008). Thus, until recently there was very little case law in which to refer to. However, the primary legal issue goes directly to the question of authenticity, which was argued in a 2004 appeal heard before the Connecticut Supreme Court. In Connecticut v. Swinton, the appellant argued that his murder conviction was, in part, based upon inadmissible digitally enhanced images. The appellant questioned the authenticity of the digital photographs and the fact that they could be easily manipulated. While the Court decided against the appellant, it also established a six-pronged process in which digital imaged could be authenticated which, in turn, addresses the issue of how digital photographs must be handled if the intent is to use them as evidence (Levy-Sachs & Archambault, 2008).
Since then, other cases have challenged the authenticity of digital photographs. For example, an authenticity ruling favored the appellant in the 2012 case Rushing v. Com, when the Court of Appeals of Virginia a number of convictions because there was no one to testify that digital images presented by the prosecution were fair and reliable (Robinson, 2016). In the 2014 case Shea v. Kevic Corp., the Idaho Supreme Court decided that digital images of scenery (building, etc.) were admissible only when a witness can testify that what is being portrayed in the image was fair and accurate (Robinson, 2016). Last, in Pena v. State, the Texas Court of Appeals ruled in 2015 that an altered digital photograph was admissible when the individual who had rendered the alterations received appropriate training (Robinson, 2016).
- Levy-Sachs, R., & Archambault, T. (2008). Using digital photographs in the courtroom – considerations for admissibility. In FDCC winter meeting, 2008 technology and E-commerce section intellectual property section meeting (pp. 14-24). Elmhurst, IL: Federation of Defense & Corporate Counsel.
- Robinson, E. M. (2016). Crime scene photography (3rd ed.). Cambridge, MA: Academic Press.
