One oft-mentioned criticism of digital photography is its malleability -- anything digital can be changed with ease, which raises questions about the admissibility of digital images as evidence. But despite their malleability, digital images have faced few court challenges. Federal and state rules of evidence have stretched to accommodate the technology. In the 1995 precedent-setting case of the State of Washington vs. Eric Hayden, the court admitted into evidence digital photographs of fingerprints it knew had been altered (police investigators had enhanced latent hand and fingerprints found on a bedsheet through a variety of techniques the court deemed scientifically valid -- NASA scientists had developed the technology in the 1960s to record satellite signals), and convicted Hayden of murder. The state appellate court upheld the decision three years later.

As a result, courts regularly admit digital images, even when they know they've been changed. "Just as with traditional photographic images, digital images generally need to be altered to represent what the person who photographed them saw," says Reis. "Altering an image is not necessarily a bad thing; it's a required thing in many cases."

But every new touch-up tool from Photoshop, Photo-Paint, Photo Studio and the like raises questions, provoking periodic cries to amend the "evidentiary codes."

"Digital photographs are easy to manipulate by using the clone stamp or multiple other tools," says David Spraggs, a detective with the Boulder (Colorado) Police Department, who oversaw his agency's switch to digital about two years ago.

Not everyone agrees it can be done effortlessly, though. "It's what I call the goat's head syndrome," says the LAPD's Adkins. "It's the Hollywood version and the belief that you can put a goat's head on a donkey and no one can tell the difference. Well, it's not so easy to do that. You can make those changes, but you have to work quite a long time with the right tools to do that."

Spraggs, who teaches digital forensic photography and crime scene investigation, uses Adobe Photoshop daily to sharpen, resize, adjust the color or correct for faulty focus or camera settings. Sometimes he also uses GretagMacbeth's color-gauging tools.

Color is particularly important when preparing photographs of domestic violence or assault victims, he says. "We don't want to make the injury seem worse than it is or less serious than it is. We make the images look like a more accurate representation of what the photographer saw at the scene." Spraggs saves the original images on a writable CD-ROM, makes his changes on working copies and records every step he takes to enhance the original image on Photoshop's Action Palette. He then prints and attaches the record to the photograph and sends it to court. Any investigator can replicate Spragg's changes and reproduce the photograph from the original file, just like in a scientific experiment.

Call it ethical enhancement. "The distinction is between changing the quality and changing the content," says Reis. "You never change the content."

But, as Spraggs admits, the line can at times become gray. He offers his favorite reply: Traditional film-based images, which were always retouchable, can now be altered just as easily as digital photographs. "You can scan that film into a computer, turn it into a digital file and manipulate it in Photoshop," he explains, and, with a device called a film recorder, reconvert the altered digitized files to film. "Basically, the technology goes full circle, and has gotten to the point where any image can be questioned." In other words, if film is no longer "safe," why worry about digital?

Always ready to fill a vacuum, vendors have stepped in with image-security software in the form of "tamper-proof" encoded formats that bolt in the picture at the time it's captured, but most forensics experts deem such precautions costly and unnecessary. "It gives a certain amount of comfort, but most of the software can be defeated in one way or another," says Steven B. Staggs, author of Crime Scene and Evidence Photographer's Guide and a forensic photography instructor for 17 years.

Instead, Staggs and Swaggs preach such low-tech steps as developing standard operating procedures, maintaining chains of custody for the images, preserving the original, keeping logs, restricting access -- all basic guidelines similar to those developed by the FBI's Scientific Working Group on Imaging Technologies, or SWIGIT.

"If people buy into your protocols, you're fine," says Staggs.

Courtroom acceptance of an image, whether a drawing, a conventional photograph, a videotape or a digital photograph, has hinged on "authentication," which requires only that an on-the-scene witness testify that the photograph is an accurate representation of what he or she saw. "That statement takes the onus off the means by which [the photograph] was produced and puts it on the testimony of the witness, because the witness testifies in fear of perjury," says Blitzer, who sits on the SWIGIT committee. "The technology is a backseat issue. You can't put a picture in jail, but you can put a false witness in jail."

But while the technology itself doesn't appear to be riling defense attorneys, the notion of victimless prosecution -- the idea that photographs can substitute for an unwilling plaintiff -- does raise serious hackles.

"They've tried to do it, and we scream," says Steven Silverblatt, supervising attorney for the Queens Legal Aid Society. "The defendant feels deprived of his constitutional rights when this happens. They're looking for ways to make the case without the victim. If they want to take better pictures, great. No one can say that better photography is damaging, provided they don't pressure people who don't want to press charges into doing so. People have complicated relationships. They might want to solve their problems on their own. It's not that we approve of domestic violence, but these solutions can produce results a complaining witness doesn't want."

Unlike armed robbery or other attacks by strangers, domestic violence cases "are complicated in a way that a lot of other serious crimes are not," says Holly Maguigan, a professor of clinical law at New York University who studies the criminal prosecution of domestic violence cases. "Sometimes victims don't press charges because prosecution isn't the way out of a bad situation for them. It might not be a particular woman's own best route to safety. Since the police cannot provide 'round-the-clock protection to people, there's a way in which it's hard not to credit her opinion."

Prosecutors say they stay mindful of this. "With some people, the prosecution is only part of the big picture," says Lucibello, whose office will soon be relying on digital photographs. "But you need to be ready to go forward without the victim's participation. I can think of examples where the hair would stand up on the back of your neck if you thought there wasn't going to be a prosecution. But that doesn't mean you'll always take that route -- maybe it's working with an advocate and putting together a safety plan. Even if you decide at the end that prosecution is not the safest thing to do, the digital cameras give you the ability. They're something to go into the arsenal of weapons."

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