Snipped from overgrow.
http://www.overgrow.com/edge/showthread.php?t=355586
Let's talk about your gallery and its use as evidence against you
Those of you wondering what use may be made of the photos in your gallery may be interested in this. I have mentioned it briefly in the past, but recently one of our impaired accident cases involving photographs had me scrambling to update myself on the law regarding digital photography.
As for Canada and the US, there appears to be little difference.
The main issue, as it has been for many years, is that the photographs must be authenticated by the person who took them. Either by way of a certificate / affidavit or viva voce testimony.
Now, since you (assuming the worst) have been busted and the cops have discovered your computer and all your lovely Overgrow pics, you will be thinking..."ooh man, I'm fucked now." Not so.
Since you cannot be compelled to testify against yourself, there can be no way to verify who took the pictures, and whether or not they have been altered in any way. They are hearsay and generally not admissible as evidence.
Pictures of this nature can go in as evidence if 1) both parties agree to it. 2) you testify as to their authenticity.
I doubt either of the above is likely to happen.
Below is an interesting article I found while researching the US end of the situation.
THE USE OF DIGITAL CAMERAS IN DOCUMENTING EVIDENCE FOR LITIGATION J. Christopher Nosher
Technological advances in methods of capturing evidence often carry with them special evidentiary questions, as the legal system strains to keep up with the rapid progress of science. Such conflict is readily apparent in the developing issue of the use of digital cameras in litigation. While digital cameras represent the ultimate in photographic technology, they present significant problems given the relative ease of manipulation of the images they create. Nevertheless, the advantages of digital photography outweigh such problems, so long as simple procedures to protect the integrity of digital images are followed. Furthermore, the same framework used by courts in establishing the authenticity of evidence of all other types is adequate to address the issues presented by the digital camera. Digital cameras utilize a charged coupled device (CCD) and a diskette or flash memory card in place of the film used in conventional cameras. Digital images are made up of ??pixels?? stored on rectangular grids called bitmaps, which together make up a digital photograph. See Keane, Prestidigitalization: Magic, Evidence and Ethics in Forensic Digital Photography, 25 Ohio N.U.L. Rev. 585 (1999). These images can then be stored on computer hard drives, floppy diskettes or compact discs. Once on a computer, the images are easily manipulated using software such as Adobe Photoshop, Corel Photo-Paint or other similar software. Operations from adjustment of brightness and contrast to wholesale removal or addition of subjects can be performed with the click of a mouse. It is the ease with which digital images may be altered, and the degree to which such alterations can often be imperceptible, that lead to concerns regarding the admissibility of such images at trial. Although digital cameras have been available for several years, there is little case law dealing directly with the admissibility of the images they generate. The Georgia Supreme Court recently addressed this issue in Almond v. The State, 553 S.E.2d 803 (Ga. 2001). In that case, the court stated that where digital images were properly ??authenticated ?? as fair and truthful representations of what they purported to depict,?? they constituted admissible evidence. Id. at 805. Importantly, the court also stated that ??[w]e are aware of no authority, and appellant cites none, for the proposition that the procedure for admitting pictures should be any different when they were taken by a digital camera.?? Id. The court pointed out that videotapes were admissible on the same grounds and subject to the same limitations as photographs. As noted by the Almond court, the use of digital photography in documenting evidence can be likened to the use of video recording, which was met with similar concerns when it first began appearing in courtrooms. Currently, the Virginia courts treat video recordings no differently than photographs from an evidentiary standpoint. See Brooks v. Commonwealth, 424 S.E.2d 566, 569 (Va. Ct. App. 1992) (stating that the admissibility of a videotape, like that of a photograph, rests within the sound discretion of the trial court). See also Wilson v. Commonwealth, 511 S.E.2d 426 (Va. Ct. App. 1999) (holding that properly authenticated videotapes are admissible to the same extent as photographs). The authentication of video recordings is no different from that of still photos, requiring a foundation that establishes the accuracy of the process used to produce the photograph or videotape. Id. In State v. Hayden, a case dealing indirectly with the use of digital photography, the Washington Court of Appeals addressed the use of digital imaging for the purposes of extracting latent fingerprints. State v. Hayden, 950 P.2d 1024 (Wash. Ct. App. 1998). The court noted that ??[c]ertainly digital photography is not a novel process. Neither is the use of computer software to enhance images. It is only the forensic use of these tools that is relatively new.?? Id. at 1027. In affirming the decision of the trial court to admit the digital imaging, the court noted that the expert offering the evidence testified that he used software which prevented altering, enhancing or destroying the original image. Id. at 1028. The true concern regarding the use of digital cameras in litigation seems to involve not the novelty of technology used to capture images or the accuracy of the images captured, but rather the ease with which digital images can be manipulated using easily obtainable software. While it is possible to enhance or alter digital photographs, it should be noted that any form of physical evidence can be manipulated. Even within the photographic world, the ability to alter the contents of an image is not unique to digital technology. To the contrary, traditional film photographs can be (and have been for years) manipulated using techniques such as ??dodging?? and ??burning?? (the use of over or under-exposure of areas of a photograph in order to alter the image) or the superimposing of images from one photograph upon another. See Keane at 586, 591. In order to combat the possible perception by the courts that images captured by digital cameras are somehow less trustworthy than those generated by their film cousins, every effort should be made to document the authenticity of digital images. As with any form of evidence, careful effort must be made to ensure that the process of gathering digital images is documented and overseen. A detailed record of the time, location and subject of the photograph, as well as any witnesses to its taking, should be created. Additionally, the original memory card or diskette should be labeled and retained. Digital enhancement, even adjustments as limited as brightness or contrast of the image, should be avoided. In the end, so long as the trial court can be convinced that the digital images are true and accurate representations of the subject material that they purport to portray, such evidence should be well-received. Given the many positive attributes of digital cameras, from ease of use and immediacy of image viewing to the simple transfer of their images throughout a variety of media, the utility of these cameras far outweighs any burden they carry from an evidentiary standpoint. This is particularly the case when simple procedures to assure the integrity of digital images are followed.
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I wouldn't put too much faith in that. I was on a jury last year involving statutury(sp?) rape and child pornography. The man had pictures of his girlfriend's daughter, naked, on his computer. There was no definitive proof that the pictures were in fact taken by him, but considering all the testimony ,however, we were convinced beyond reasonable doubt that he did. If he had a better lawyer, things may have turned out differently and the pics may never have been entered into evidence but they were.
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