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Digital Images: Don't Blink or You Will Miss Them

By James H. Rotondo, David B. Broughel and Edgar B. Hatrick

The use of digital cameras to create and preserve images has evolved from an expensive, often specialized process to a common practice embraced by the general public. As the use of digital photography has become commonplace, so too are digital photographs being increasingly offered as evidence. Courts generally have accepted digital photographs for the same purposes as traditional photographs: to support testimony and sometimes to take its place as “pictorial testimony.” Digital photographs, however, are far more easily altered and manipulated than traditional film photographs, and such changes may be more difficult, if not impossible, to detect.

With modern scanning technology, even photographs originally taken on film may be loaded into computers and digitally altered. The increasing use of digital photography, therefore, raises numerous issues both for counsel seeking to offer digital images as evidence and for parties against whom such images are offered, including the manner in which such images were created, how they were stored and/or transferred into other media formats, and whether the images have been altered in any way. Failure to determine the answers to these questions well before trial may result in the admission of false or misleading evidence.

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