Legality of Digital Photos in Civil Suit

[buck_rogers1]

I have a friend who is filing a personal injury lawsuit in the State

of Utah. He has some scarring and other injuries that need to be

photographed due to their location on his body (ie. pelvic area). He

has asked me to photograph them for him as I have lighting and decent

equipment.

<p>

My question is two-fold:

<p>

First - Because digital images can be so easilly manipulated, would

digital be admissible in such a legal case? Do I need to make sure

that all of the files are printed as well as submitted on a disk to

verify the EXIF (I am shooting on a Canon Digital Rebel)?

<p>

Second - I have a simple light set up with some vivtar 283's and a

320 w-s Monolight with an umbrella. Will direct or diffuse lighting

be better for showing detail in the scarring? I imagine that direct

main and diffused fill will give the best detail but I may be wrong.

<p>Thank you for your time in answering or suggesting other URL's

that can answer my questions. If there are other concerns that I am

neglecting, please point them out to me.

<p>Thanks,

<p>Buck

[mike_morgan1]

From what I have read on photo.net, you would have to testify that the photos were true and accurate representations anyway, film or digital. To be honest, all photography can be manipulated in other ways (lighting, focal length).

 

If you wanted to be really safe, use a 1Ds with the verification system they have. But I don't know if that would hold up in a court anyway.

 

The attached image is of a large fish, but it appears larger due to manipulation at the time the photo was taken. (Wide angle, fish held out in front).<div></div>

[Uhooru]

I'm not an attorney, just a paralegal and this is just my personal opinion, not a legal one. I think the issue is if the photos are challanged you will have to lay a foundation for their authenticity. There must be some case law on it by now for digital, but the courts are behind the curve on this. One thing you could explore is shooting a raw file, and maintain that raw file as the "original" then you would have to document each step and probably testify as well, but at least you would have the raw file. Of course,he then would probably need a designated and qualified expert that could give expert opinion that raw files are like negatives. Better yet. You could just shoot film for now, keep the negatives and avoid a lot of hassle. You may still have to testify but that would be fairly rare. If you need to shoot injuries to create a record, you don't want to be screwing around doing research on what's admissible in digital photography, IF it is going to be an issue. People are using it more and more, and it just depends on the judge and the insurance companies attorneys. I personally don't think this is the time to fight that battle especially if you have a choice. That's just my opinion:)

 

As far as the lighting, I'm not sure what's best, most attorneys just use on camera flash. But I do know this, texture is amplified by side lighting, so if you want to show for instance the raising of tissue around a scar, perhaps a light off to the side coming accross it would be well, if you think its too extreme than you could just use a bounce card on the other side. I would use the umbrella because too harsh looks extreme and you don't want the shot to look "unatural", but you just want to enhance through the lighting the feature you want to present. Is this manipulation? You have to decide. Does any of this make sense? Just know that generally we often get photos taken with throwaway cameras blown up to 24 x 30 or whatever the crop is and they are quite usable.

Good Luck!

[dai_hunter]

This is for Buck, but Barry may wish to comment as well.

 

In addition to visible light images there may be some value in personal injury cases for taking infra-red and ultra-violet images. If the source of the injuries was recent and the healing not yet complete... UV and IR images (UV images being particularly interesting in this respect) WILL highlight deep tissue damage not visible to an ordinary camera in normal lighting. They are forensic photography techniques used in some murder, rape and domestic violence cases, even post mortem, for exactly that reason.

 

Almost any woman's crises center and some hospitals and coroners would be able to advise how it is done; who can do it; and how it might be used in court.

 

At latest check, for example, UV is being used diagnostically to determine damage to the skin from sun exposures and pre-cancer screening of human skin exactly because it can "see" beneath the surface. IR, likewise, will show up "hot spots" beneath the skin surface that become medically significant where they are in places they shouldn't be. None of this would compete with any other medical imaging such as scans or x-rays at trial but act as supplementary evidence of the injury, and it's extent, in a visual form that can be presented to a judge and or jury.

 

PS: My background is in fire investigation [now retired, but I still work as a photo-journalist] so I have for a long time been aware of alternate photographic techniques used for investigative and for evidentiary purposes.

[mark_herring]

For a court to disallow a digital image as opposed to a conventional one, one would have to prove that it was digital. I think other responders have it right: You would have to demonstrate the credibility of the image. My legal experience is limited to Jury duty, so I'll stop there.

 

The 3 rules for lawyers:

1. If the facts support you, argue the facts.

2. If the law supports you, argue the law.

3. Otherwise, just argue.

[ellis_vener_photography]

I am not a lawyer, but the admissability of any evidence will ultimately depend on

whether or not the other side challenges it. At that point you have to be able to prove

the veracity of the evidence being presented. Admissibility might also depend on

precedents in the court system you are doing battle in.

[will_perlis]

I'd take some Polaroids at the same time to be able to demonstrate no scars or bullet holes were added later.

 

As for the new Canon "tamper-proof" system, it might be valid but it's not been proven so yet, and you don't want to be involved in explaining checksums, transforms, and cryptographic mathematics to a jury. Or do you?

[atkphotoworks]

Buck, I think the others above pretty much had it right. I just finished law school and what I remember from evidence class is that when presenting evidence (in this case - a photograph), the attorney will have you lay the foundation and will show you the print from the photo. Ask you whether you took it and if it's a fair and accurate representation of what you photgraphed etc. However, if the other side attempts to impeach you about the source, i.e. digital photography, there may of course be issues of whether it was doctored etc...Furthermore, it may largely depend on the jurisdiction and the rules of evidence in which they apply. Some may allow it and other may not.

 

The issue of digital photography in the trial process was something that interested me. Nevertheless, I would go for straight film and at least that way you can produce the negative if any questions are asked as to the accuracy and integrity of the source of the image.

 

However, your friend should also consult an attorney as to what the Utah rules of evidence allows as for digital photography submitted as evidence etc...It might save time and rest a few doubts.

 

BTW Mark you were two 2/3s correct...

The third is actually argue Public Policy if there are no facts or law to support you. Hell it worked for Thurgood Marshall when he argued Brown v. Topeka Board of Education.

[kelly_flanigan1]

Often what the actual trial posters are made from is a many generation down image. This maybe a color copy from side #2; of a color copy from side #1; made from the filed evidence "a photo/print". This "photo/print" might be a Polaroid; print of a digital file; slide; etc. Here I have received Wordperfect doc files of the image; of attorney done scans of side #1 or #2's inputs. These inputs are usually done of scans of paper copies of prints. Rarely are actual trial posters made from the actual negatives; or raw digital files. This is abit of a mess sometimes. <BR><BR>In a injured skin poster; over saturation of color will mess with the reality of the image. The appearance will vary alot due to lighting source; type angle; color temperature. The court/jury probably would feel alot better; if these images were shot by a person who has done this alot; and not a first timer. If these look rigged/over done; somebody may have to state that the image actually reflected reality. A person who has shot many of these type photos may have alot more believabilty; than a first timer; who is a friend of the injured. A witness ; Polaroids; film camera extras can help.<BR><BR>Many trial posters are made from disposable film camera prints and negatives.

[Jerry_]

Generally a negative is better (one can drag the negative into court if need be and examined for no 'tampering.') A digital file is tough to show on the table. Each state has a Bar Association (I think) and they would be the ones to contact on which type of photograph (or photography) is considered best for a case in court in that state.

[kelly_flanigan1]

Often objects are included for scale in a photo of a wound; a ruler; and tag stating the date; subjects name; etc. Often a series of photos versus time is made as evidence; showing how the wound got worse looking or better..with time. A color control patch allows for a printer or viewer to check color and lighting shifts. In less than 1 out of 200 trial posters have I had an actual negative to scan; or a digital image to use. Most all trial evidence filed is paper.

[dai_hunter]

Kelly Flanigan , feb 28, 2004; 08:29 p.m.

Often objects are included for scale in a photo of a wound; a ruler; and tag stating the date; subjects name; etc....

 

Interesting point Kelly - BUT - two shots should be made if anything is going to be added to the picture - one with and one without the additional item(s). THE ONE WITHOUT THE ADDITION MUST BE SHOT FIRST so that there is absolutely no question that the scene was not pictured "as found". The photographer may be asked to testify to that as well.

 

I have seen defence lawyers argue that adding a tag; color comparator; scale; or anything else makes the photo inadmissible Sometimes arguing the point successfully as well IF there is no raw and unadulterated shot to go with it. It is the adulteration of the image and scene that gets them up in arms though usually just short of an accusation of outright tampering with the evidence.

[buck_rogers1]

Thank you all for the feedback.<p>

I guess I should have clarified that the injury is over a year old and the photographs will be of scarring on the man's upper leg from the surgery after a nasty car accident. We decided to err on the side of caution and stick with film. We will take pictures both with and without items to show scale. I'll be taking them with direct strobe lighting from my monolight and enough of an angle to show dimension but not enough to be construed as manipulative. We'll be shooting in a plain basement room of the victims salon. <p>

So here's my next question. What film? I imagine a high quality Portra or NPC maybe. Perhaps, a consumer grade with the "punched up" saturation will work. Or else, contrast without drastic saturation is best. I'm used to using film (NPS) and techniques to disguise blemishes so this is the total opposite of what I do. I'll be using a Canon 50mm f/1.4 pretty wide open (f/8-11) to maximize the sharpness of the image.

<p>The attourney said that 8x10's are the goal (for settlement) but larger posters may be necessary should this go to jury trial.

<p>So, which film should I use? Obviously, a pro-lab will handle everything else.

[dai_hunter]

Almost any film with a good contrast curve will do. You also will have to make some "on the spot" decisions on the amount of side lighting to emphasise the injury site - not too much but also not too little. Straight on front and flat lighting may not always be the best choice for the best representation of an injury but at least some of the images should be shot that way (flat lighting) and some with consideration of emphasis on increasing the shaddow / contrast (by side lighting) in the injury site... the lawyer can then decide which shots suit their purpose better.

 

Shoot lots of images. Film is cheep compared to compromising the case. Keep some simple notes on all the shots - generally by film and frame number - date; time; film; lighting used; and where two identical shots were done using different lighting - which is which; and so forth. These are strictly for your own use and as an aide memoir if any questions come up at a later date.

[buck_rogers1]

Thanks again for all of the good ideas. This is what I decided: Direct light from monolight, 50mm f/1.4 w/ diopter, Fuji NPC160. Here's a sample shot from my 'dribble' as I have not yet taken the film to the lab.<div></div>

[dai_hunter]

That image works for me Buck.

[kelly_flanigan1]

Is the verticle line a negative scratch; or a skin mark? digital scan artifact?

[kelly_flanigan1]

or Vertical; for the smarter Jury person?:)

[buck_rogers1]

hehehe, nice catch Kelly. In case you're not being sarcastic, that whole line is the scar. Of course the posters will be larger, and included a ruler for scale. This was just a digital proof for checking the lighting effect.

[buck_rogers1]

To protect this suit, would the adminstrator of this site please consider removing this thread-or at least removing the photo?

<p>

Thanks, <p>

Buck

[kelly_flanigan1]

Buck; I wasnt sure if it was a scan defect; or perhaps a scappel mark.

[buck_rogers1]

Kelly, that's what I figured you meant...I'm not too bright and sometimes suspect sarcasm when people really are sincere. I think that particular scar was from a surgical incision AND the compound fracture of his femur. The other scars are much worse.