CAMERAS AND THE FIRE INVESTIGATOR:
A TRAP FOR THE UNWARY?
Peter A. Lynch
member of the national law firm of
Cozen & O'Connor
San Diego Regional Office
legal advisor to the
San Diego County Arson Task Force
with the California Conference
of Arson Investigators.
the photograph introduced by your adversary real or altered? The answer
may depend on if the photograph was taken by a digital camera. This article
discusses digital cameras, their impact on civil and criminal fire cases
and calls for image authentication before digital images are displayed before
believe an expertís verbal opinion about what happened at a fire loss
by "authentic" photographs, results in pleas of guilty in criminal
cases, or settlement in civil cases. That conclusion may be harder to
substantiate with the introduction of digital photography. Fire scene
photography should assist in the search for the truth about the cause
and spread of a fire. Accurately documenting the fire scene investigation
promotes fundamental fairness for all involved parties.
images are altered, they became a version of what one party believes existed
at the fire scene. Those digital images are not "real" nor are
they "trustworthy." Digital image alteration is the antithesis
of the search for the truth. Courts must be skeptical of admitting altered
digital images because they are not "authentic" evidence as
are traditional photographs.
ARE THE DIFFERENCES BETWEEN TRADITIONAL
PHOTOGRAPHY AND DIGITAL PHOTOGRAPHY?
photography requires film and chemicals to create images. The camera takes
the picture and the image is transferred to the negative. Prints are made
from the negatives. Traditional photography has been subject to claims
of alteration. Do you recall the Popular Scienceís cover showing
an F-15 flying over the Kremlin? Nevertheless, an original negative can
be examined to determine if the photograph has been balanced, cropped,
imagery is used by digital cameras. Visual images are captured and stored
electronically. Electronic information comprises the visual digital images.
No film or paper is used in capturing digital images. Those digital images
are reproduced instantly. Digital images do not degrade.
DO DIGITAL CAMERAS WORK?
camera contains a sensing apparatus. The camera calculates and assigns
numeric values to each pixel. The resolution of digital images are indicated
by numbers. The higher the number the better the resolution. The numbers
are identified as pixels or PPI (pixels per inch). Higher resolution images
offer finer details and appear sharper. The sensing apparatus provides
a pixel grid of the image. Each discrete cell is assigned a numeric value.
The digital image is then recorded directly by mapping the grid.
camera contains random access memory (RAM). When the maximum number of
RAM is used by the number of digital exposures taken, RAM must be restored.
That can occur by erasing images, installing new RAM, or
downloading to a computer.
ARE THE RULES OF EVIDENCE TO ADMIT
PHOTOGRAPHIC EVIDENCE IN COURT?
Federal Rules of Evidence, a photograph can be admitted into evidence
if it is a fair representation of what it shows and relevant to the issues
disputed in the case. In California, the rule is the same as long as the
photograph is a fair, accurate, true or good depiction of the object or
scene at the relevant time. Traditional photographs depict the scene/object
as it actually was when the picture is taken.
the proponent of a photograph needs to establish:
(a) the witness is familiar with the scene/object;
(b) the witness explains how he/she is familiar with the scene/object;
(c) the witness recognizes the scene/object;
(d) the picture is a fair representation of the object/scene at the relevant
of a traditional photograph degrades after each copy. A copy of a photocopy
is even of a lower quality. However, digital images can be reproduced
without degrading them. Each copy of a digital image is not distinguishable
from the original. If a traditional photograph is altered, the original
photograph or negative exists to reveal
the later alteration. That rule does not apply to copied digital images
because they are not normally distinguishable from the "original"
image. Thus, trial objections to the introduction of photographs will
be difficult to make if a party does not know the photographs are digital
of Evidence 403 and California Evidence Code Section 352 exclude evidence
if the probative value is outweighed by a danger of confusing the issues
or misleading the jury. Digital images not authenticated are inherently
confusing and prejudicial. Such images are not reliable because the underlying
data comprising the digital image is not proven to be accurate. Those
opposing digital images should establish the digital images are not reliable
without image authentication. Digital images are fraught with the potential
for undetectable manipulation to achieve the "right answer."
Consequently, the images are misleading and will confuse the jury about
what actually happened.
DIGITAL CAMERA PROBLEM
look like traditional photographs when printed, displayed on a monitor
or projected on a television. Jurors react with the same trust to digital
photographs as they do to traditional photographs. Jurors believe that
what they are seeing actually existed at the fire scene. Unfortunately,
because computers can easily re-touch, enhance, manipulate a digital image,
change the color of objects, items closed can be open, remove items from
the scene, or insert items that did not exist at the fire scene, great
caution should be followed before admitting digital camera images as real
evidence in a court proceeding.
photographs are also subject to alteration. Nevertheless, there
is an "original" photograph. Digital images can be easily modified
by anyone with a home computer. Recall a digital photograph is a collection
of numbers from a computer. There are several million digits reading either
"1" or "0." As such, numbers may be replaced, added,
or removed. Small portions of the photograph can be adjusted and are impossible
to detect without comparison to the original digital image. Consequently,
traditional courtroom admissibility concerns are enhanced, because of
the very real concern of manipulation of digital images. Digital images
can be copied repeatedly and distinguishing a copy from an original can
If a "prepared"
witness lays a "foundation" for an altered digital image, a
court will be hard pressed to exclude that evidence, based on the current
Federal Rules of Evidence and state courtsí evidence rules.
above, digital photographs pose serious risks to our judicial system which
originally accepted "traditional" photographs under the assumption
that the item actually existed at the scene when photographed. Today,
that "assumption" should not apply to digital photographs. The
standard foundation for a traditional photograph does not adequately address
the digital image alteration issue.
suggests all digital images should be "conspicuously labeled."
This provides the viewer and other party a "warning" that the
image may be not "accurate" or "real." That suggestion
fails because it relies on the party taking the digital image to disclose
provides a new mechanism to address this problem. That solution is digital
image authentication. EPSON has introduced authentication software that
operates within the camera. Images can be authenticated via a small software
program on a PC. All images with an EPSON camera with IAS installed will
automatically be embedded with digital authorization. The computer connects
by a serial port to an EPSON digital camera. Initially, the software is
loaded once in the camera with an encrypted key added to each digital
image. Operation of the system is invisible to the camera operator and
automatic. The computer compares the image loaded from the camera, to
see if it has been altered. EPSON contends changing one single pixel will
cause the image to fail authentication. This system works with EPSONís
Photo 850Z, PC 800, 750Z and 700. The original estimate by Epson indicated
it would take 330 years to forge an image embedded with an IAS fingerprint.
Newer EPSON web material omits a time estimate to forge an image protected
by the system. This authentication system presents the latest technological
advancement to address digital tampering.
a digital point and shoot camera system that relies on standard operating
procedures (SOPís), unalterable media storage and a separately managed
index to address image integrity. Commentators suggest that writable CDs
be used to store digital images. Those discs are to be non-erasable. Writable
CDs are created by permanently altering the discs with a laser light beam.
CD writers cannot delete laser marks. CDs should have serial numbers to
avoid claims of substituted discs. Kodak writable CDs have embedded serial
numbers readable by machines and operators. The SOP should include information
about the image's creation. Strict custody over the image records is necessary.
That would include a separately managed index. An audit trail of the captured
images is also important. However, Kodak's system does not place a "fingerprint"
on each photograph as EPSON does. Therefore, it is less secure. Additionally,
EPSON's image is authenticated from the time the picture is captured.
- The Guide for Fire and Explosion Investigations, Section 8-18.104.22.168 does
not address digital images under its discussion of cameras. This author
has proposed adding to that section: "Care should be taken in using
digital cameras to record a fire scene. Digital cameras record images
electronically. However, those images can be altered or enhanced by computer
software. Thus, those images may not be as trustworthy as traditional
photography without an image authentication system."
IMAGES IMPACT ON JUDICIAL PROCEEDING
image evidence turns judicial proceedings into a "battle of wits
rather than a search for the truth." Court trials should be a fair
contest not a "game of blind manís bluff." By ensuring digital
images are authentic, we promote correct courtroom decisions. The proponent
of a digital image must be made to show it is authenticate. That result
follows because his client possesses the information about how the image
was captured, what equipment was used, and all relevant information as
to its authenticity.
The opponent of the digital image does not have equal access to that information.
The proponentís advantage is significant and can increase its likelihood
of prevailing at trial if image authentication is not enforced. As one
court noted about court trials, all investigators, parties and counsel
should recognize we are "servants of the law rather than servants
of the highest bidder. We must rediscover the old values of our professor[s].
The integrity of our justice system depends on it." So too does the integrity
of your scene investigator.
images offer benefits to include ease of electronic transfer and storage.
However, those same digital images without an authentication system, pose
a great risk to our judicial system. Our system of justice depends on
authentic evidence. Altering digital images does not assist the fact finder
in reconstructing what happened at the fire scene. Technology which enhances
passing off altered digital images as real evidence, strikes at the core
of our judicial system. Letís make sure digital images reflect what was
really at the fire scene, promoting equal access to justice. Not the wishful
creation of an interested party. Failure to address this digital authentication
issue now, opens a "Pandoraís Box" for junk science to enter