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In an age of widespread digital technology where computers and the internet are relied upon daily by the general population, universal guidelines governing admission of digital and computer-generated evidence at trial remain elusive. Courts and legislatures have often failed to keep pace with rapid advances in digital technology and computer software capabilities. Because the areas of digital and computer technology are intimately intertwined, the literature reviewing admissibility of computer-generated evidence provides appropriate guidance. In any event, a sophisticated system of evidence presentation may incorporate both technologies.

Types of digital evidence include digital photographs, video recordings, spreadsheets, emails, electronic databases, instant message histories, social media histories, digital audio files, internet browser histories and computer-generated exhibits tailored to litigation. However, as digital technology continues its rapid advance, new types of digital evidence will undoubtedly be developed. As digital imaging and computer simulation, animation and enhancement technology converge, counsel should be familiar with the range of options available.

The use and usefulness of digital evidence have increased as the relevant technology has advanced, but concerns linger as to the reliability of such evidence. The technology is persuasive, and with appropriate safeguards should allow counsel to effectively argue his case. As juries are increasingly comprised of more computer-savvy members, they are likely to be aware of technologies permitting alteration of digital recordings and photographs.

Evidence presented in the form of digital photos, recordings and computer-enhanced images leaves a strong impression on the jury and facilitates the truth-seeking function of the trial by visually presenting the relevant facts and circumstances clearly and concisely. Digital images, as opposed to traditional photographs, are highly susceptible to manipulation, as courts and juries are generally aware. The individual preparing the digital exhibit is capable of adjusting the contrast and brightness of an image at the pixel level. An individual can also minimize flaws in the original image that would tend to obfuscate the subject matter, and digital filters can bring out important details. The risk of manipulation is greater with digital images because the user of a digital camera or cell phone produces the finished product himself, rather than delivering film to a professional developer.

One method by which counsel can demonstrate that a digital image has not been improperly manipulated is by establishing a chain of custody. However, this is used most frequently and successfully by law enforcement agencies and is less likely to carry weight in other contexts. Another method is to encrypt the digital image and demonstrate the encryption to the court.

Because the majority of objections to digital evidence counsel will encounter at trial will relate to the foundation for admissibility, laying the proper foundation is paramount. While no strict formula has been adopted, several factors have been identified for admissibility of computer-generated evidence, which apply when faced with objections to digital evidence in general. Review of case law from other jurisdictions indicates that courts stress reliability as key to any admissibility inquiry.

The Washington Court of Appeals adopted the Frye test of admissibility for enhanced digital images, explaining that “[b]ecause there does not appear to be a significant dispute among qualified experts as to the validity of enhanced digital imaging performed by qualified experts using appropriate software, we conclude that the process is generally accepted in the relevant scientific community.” State v. Hayden, 950 P.2d 1024, 1028 (Wash. Ct. App. 1998).

Counsel should be wary of using computer programs to crop or remove objects from digital images in order to avoid objections on completeness grounds. Another important consideration in overcoming objections at trial is providing disclosure to opposing counsel concerning the process and system used to produce digital exhibits. Such disclosure gives opposing counsel an opportunity to prepare cross-examination and rebuttal or move for a motion in limine, reducing the need for objections and more exacting foundational testimony at trial. Both the court and opposing counsel should have enough information that they feel comfortable that evidence is sufficiently trustworthy to be admitted for its substance.

As the U.S. District Court for the Eastern District of New York explained: “In light of ever-changing technology, wide ownership of personal computers, expanding use of the internet and personal digital assistant devices, among other electronic innovations, the layperson is increasingly immune to confusion by the encroachment of technology into heretofore primitive communication zones such as the jury room.” Verizon Directories Corp. v. Yellow Book USA, Inc., 331 F.Supp.2d 142 (E.D.N.Y. 2004). Keeping the above-mentioned considerations in mind, counsel should be prepared to utilize the available technology to effectively present his case, while overcoming objections to the admission of evidence prepared using such technology.

In any event, counsel is reminded that proffered evidence remains subject to the requirements of Federal Rules of Evidence Rules 402 (relevancy), 403 (requiring that evidence not be unduly prejudicial), Rule 611 (giving the trial court control over presentation of evidence), 801 (precluding hearsay) or state law equivalents. Where admission of digital or computer-enhanced evidence is sought, counsel must recognize that one walks a fine line between the perception of presenting evidence and creating evidence.

Article by GOT co-founder and principal attorney, Seth Gausnell

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