Photography is now an accepted part of daily life and legal proceedings, to an extent unimaginable even a generation ago, when the admissibility of color photographs was still a live issue.(11) This familiarity may have desensitized the public and the courts to the fact that photographs are not in themselves reality.(12) Indeed, although theorists and courts are well aware of the fallibility of images produced by photography, authentication has remained a low hurdle to their admission into evidence.(13) Further, if the current trust placed in photographs is built on a cracked foundation, the emergence of digital imagery has razed it entirely. Yet there has been virtually no blackletter or doctrinal response. Perhaps only a travesty of justice will spur action--but few would wish for such an event, nor is a response so inspired generally well-considered or structured.(14)

A. Photography: Fact and Theory

Photography is derived from two Greek words, graphos and phos, that together mean "writing with light."(19) Photography, broadly defined, includes any the recording by chemical, thermal, electrical, or electronic means of scenes or objects formed by some type of radiant energy:(20) Photographs thus are not just created by visible light but also by x-rays and infrared light, among others.(21) Most methods of photography use a lens to focus rays at or near a focal point, forming a real image that then can be preserved.(22) The most traditional method of photographic preservation is based on light-sensitive silver salts, although other light-sensitive chemicals exist.(23) Silver salts remain the most common means in use today, capturing a latent or invisible image that later can be developed chemically or thermally,(24) although the recording of images as impulses on a magnetic medium is of increasing importance and prominence.(25)

Photographs long have been assumed to be like evidence left at the scene of a crime--the product of causal, not intentional processes, and thus accurate and dependable evidence of events that transpired.(26) But this simply is not the case: "Pictures do lie for the photographer who intentionally or unintentionally makes them lie."(27) Virtually innumerable elements can result in a photograph that is not an accurate depiction of reality, without any conscious manipulation on the part of a photographer,(28) before or after an image is created.(29) Some theorists do claim that the work of a professional is less likely to be distorted than that of an amateur: The experienced photographer builds a picture, while the amateur just presses a button.(30) But, still, it is impossible to create an image completely free of misrepresentation.(31) Even a professional must confront the inherent limitations of technology; e.g., excluding rarities such as holograms, photographs record in only two dimensions what the eye sees in three.(32) A vicious circle is at work--unlike drawings and paintings, which are distrusted because they are products of human intention, photographs easily can deceive and misdirect, because they are regarded as trustworthy on account of the role of science in their creation.(33)

The techniques of digital imagery are far from necessary to manipulate a photograph.(34) Great potential for distortion arises from the variables of lens type and camera position alone.(35) Different lenses can produce strikingly different results, even if photographs are taken from the same position.(36) This is because every lens has a specific focal length--the distance between the surface of the film and the point near the lens at which light rays converge to form an image.(37) Lenses with long focal lengths--telephoto lenses--tend to shorten lines, narrow the width of an area, and make objects appear closer.(38) Conversely, lenses with short focal lengths--wide-angle lenses--tend to elongate lines, broaden the width of an area, and make objects appear farther away.(39) The risk of distortion is most significant for photographs of places and objects, which lack references, such as human beings, of which the average person knows the correct shape and size.(40) Camera position likewise affects the perspective of a photograph.(41) If one wishes to depict what a human being would see, one should place the camera at eye level. A photograph taken from just above ground level would depict an obscured view; one taken many feet above the ground, would show unrealistic visibility.(42)

Lighting is another potential source of distortion. Obviously, it can make a subject appear lighter or darker than in reality.(43) But subtle changes in the lighting of scenes also can produce significant differences in apparent dimension or depth, such as in photographs of holes and depressions:(44) Insufficient lighting minimizes the dimension of an object or the depth of a hole, while enhanced lighting emphasizes both dimension and depth.(45) Whether a photograph is taken in color can have similar effects. Color photography is less subject to distortion and generally portrays scenes and subjects more accurately than comparable black-and-white photographs, which are subject to additional distortion from film and lens filters, which struggle to reduce three-color reality to shades of black.(46) But filters can change color photographs also--they may be used to bring out blood stains on a green carpet--or darken the sky so a clear day looks stormy.(47)

Errors in development are yet further potential sources of distortion. "The printing process is perhaps the one step in photography most vulnerable to misrepresentation."(48) Improper exposure can produce a misleading photograph if matters of detail, tone, or contrast are important, and even if the negative itself is correct.(49) But many errors in development may have only an insignificant effect on a photograph, or are easily noticed: Photographs entirely overexposed or underexposed, for example, are conspicuous.(50) Others errors are somewhat more imperceptible. Reversing a photographic negative during the development process presents a subtle danger: The right and left sides of a photograph are reversed in a clear but deceptive print.(51) But reversal is said to be infrequent and is usually inadvertent.(52) Further, frequently identifiable elements of a photograph--such as writing--will immediately indicate to a viewer if the image has been reversed.(53)

But other types of distortion that may be introduced in the development process pose a greater challenge. They may not be easily detectable. Yet, they may also have justifiable uses, to uncover information that standard processing techniques would not. A strong reflective glare may be removed in the lab, for example, creating a "correct" image--or may be added, destroying one.(54) If one changes the plane of the paper onto which an image is printed, once can correct for a camera that was tilted when a photograph was taken--or create the illusion that the subject of the photograph was tilted.(55) By "burning in" or "dodging" one can obtain different exposure times for different portions of the same negative--exaggerating or eliminating critical items,(56) useful if one wishes to, for example, view inconspicuous fingerprints but is also open to abuse.(57) Thus, even if it could be enforced, a blanket prohibition on the use of development "tricks" could not be imposed without undercutting the use of photographs as evidence.

The challenge for the courts therefore has been to determine, on a case by case basis, whether a photograph may be admitted into evidence. Courts do allow altered photographs to be admitted into evidence, so long as the photographs meet the court's standards of admissibility.(58) Courts have allowed skidmarks to be painted before being photographed, to enhance and ensure their visibility, for example.(59) Similarly, portraits retouched before the commencement of legal proceedings have been admitted if no better depiction of a place or person existed.(60) But photographs that have been subjected to techniques with no conceivable evidentiary use have been uniformly excluded. Composite pictures, the combining of existing images, in "virtually every situation" are "fraudulent and misleading."(61) Indeed, the courts are aware that "[p]ractically any result is possible if a skillful artist retouches either the negative or the positive print."(62)

Nevertheless, few court decisions concern the admissibility of retouched photographs (as opposed to potentially misleading photographs) presumably because they are commonly understood not to be good practice.(63) Indeed, courts appear tacitly to have adopted the presumption that photographs introduced for submission into evidence have not been retouched.(64) The issue of whether a photograph has been retouched and thus should not be admitted into evidence as it is untrustworthy therefore arises only if a challenge is mounted; it is not necessary to testify that a photograph has not been retouched if it has been testified to be a fair and accurate representation.(65) The charge that a photograph has been retouched with an intention to deceive has been described by theorists as a serious one and as one that should not be made without supporting proof.(66)

In the past, altered photographs were often easy to detect, justifying the above presumption. Photomontages, for example, usually leave physical evidence of doctoring.(67) Printing masks and knife cuts may produce implausibly sharp edges;(68) pencil marks and paint dabs may stand out against surrounding textures;(69) and colors may not match.(70) One recent example of such a photograph proven to be doctored, although it was not become part of a court proceeding, surfaced in July 1991, allegedly showing three lost American airmen, alive in Vietnam.(71) In addition to general blurriness, suspicion was aroused by Stalinesque mustaches on the three men, the irregular shape of a sign in the photo, and the unclear physical support and spatial location of the distress sign they held aloft.(72)

In legal proceedings, however, minor discrepancies that are not indicative of forgery may not be sufficient to lead a court to question the authenticity of a photograph. One court was not persuaded that a photograph on a German personnel record was of questionable authenticity based on allegations that it could have been torn off or replaced, as well as that there were indications of pencil marks and erasures.(73) The court acknowledged "[t]hat evidence suggests that the photograph may at some point have been separated from the document through the failure of adhesive" as well as that "[t]here are pencil marks with typing over them to a considerable extent, and evidence of some erasures."(74) But although the discrepancies could not "be conclusively explained at this juncture," the court declined to exclude the photograph, noting that the defense allegations lacked support, and that with the passage of time, any photographic identification may become uncertain.(75) Furthermore, the record and photograph's credibility were enhanced by the fact that the defendant's thumbprint was on the record.(76)

Other, more subtle hints that a photograph has been altered thus in fact may be necessary to prove to the satisfaction of a court that a photograph has been manipulated--clues which now take on an added importance given that little time and craftsmanship may be required to create an image that, at least at first glance appears real.(77) The more information an image contains, the more difficult it is to change or entirely fabricate it without introducing inconsistencies that are its undoing.(78) Mistakes to look for, theorists note, include: if all the objects in a scene appear to be in correct perspective;(79) if indicators of time, such as clocks and shadows, are consistent;(80) if objects do not appear to be lit, or cast shadows, consistently;(81) if unexpected discontinuities in the background suggest deletions from the foreground;(82) and if shiny surfaces show correct reflections.(83)

Another means by which to establish if a photograph has been altered is its provenance. Because a real photograph is always taken at a specific place at a specific time, its photographer can be asked how he came to take it--and its subsequent history can be reviewed.(84) The general credibility of a source--the varying credibility of Nature versus a supermarket tabloid, for example--may be a proxy.(85) Intellectual judgments also are crucial. Few would believe that the image that graced a cover of Scientific American, showing Marilyn Monroe with Abraham Lincoln, was real; likewise for a photograph of Elvis Presley in a contemporary setting(86) or a photograph of an M. C. Escher structure.(87) The only alternative is to accept the new evidence and modify one's beliefs accordingly--a significant step.(88) But this may lead to a clash of beliefs, given that photographs are generally regarded as trustworthy, a clash law is not well-placed to resolve.

Indeed, a problem for the law is that little consideration historically has been given to photographic theory.(89) When courts make decisions about the admissibility of photographs, their decisions ultimately are based on underlying theories of photographic representation--ideas about how photographs represent things and how visual meaning is communicated.(90) But these theories usually remain unexamined, neither a conscious nor explicit part of the process.(91) The lack of a thoughtful or methodical approach to photographic meaning, some theorists argue, is a cause of widespread inconsistency in the law.(92) A greater awareness of the existing bodies of photographic theory and their implications, in contrast, would lead to decisions that are more consistent and persuasive,(93) even before taking into account the changes wrought by digital forgery's emergence.

The very "tricks" that would--or at least could--render a photograph inadmissible for evidentiary purposes can be high art to photographers. "In the hands of an imaginative photographer some basic materials of the printing industry can transform a single black-and-white picture into a series of strikingly dissimilar variations on a theme."(94) Certain types of film change shades of gray into black and white, with no intermediate tones; the images that result can be used in a variety of ways, for example such as for silkscreening.(95) Developer applied at the "wrong" stage and in overabundant amount can produce effects of light and shade.(96) Although some photographers once argued that the medium was all about reproducing reality, such beliefs long since have passed out of favor: Today, many seek to create "an edited, intensified version of reality."(97)

Early photographers did tend to treat the camera as a copy machine, and thought of themselves as scribes more than poets.(98) The early photographer Louis Jacques Mande Daguerre described his daguerreotype as being an instrument with the power to "reproduce" nature.(99) Indeed, photography was distinct from all preceding image-systems because it was not dependent on a human being.(100) The process was chemical and automatic, after the guidance of the photographer was completed.(101) The authors of anatomical atlases in the late 19th century therefore believed that they could rely on photography to avoid the human temptation to exaggerate:(102) What a man could achieve only by "iron self-discipline," machines could achieve "willy-nilly."(103) The camera inhibited the imposition of "systems, aesthetic norms, hypotheses, language, even anthropomorphic elements on pictorial representation."(104) Edgar Allen Poe epitomized early understandings of photography when he wrote: "If we examine a work of ordinary art, by means of a powerful microscope, all traces of resemblance to nature will disappear--but the closest scrutiny of the photographic drawing discloses only a more absolute truth, more perfect identity of aspect with the thing represented."(105)

Well into the 20th century, theorists continued to describe photography as objective to the core. "[P]hotography has traditionally been seen as a medium of truth and unassailable accuracy."(106) Susan Sontag is one theorist to explicitly have noted the role of imagery in law: "A photograph passes for incontrovertible proof that a given thing happened."(107) But the once near-absolute confidence in photography has unraveled over time. Sontag also observed that a photograph implies "that we know about the world if we accept it as the camera records it."(108) But what the camera records is not necessarily reality. The close-up, for example, is a view the human eye cannot see, or at least cannot isolate;(109) the x-ray depicts features not visible to the eye, and features visible to the eye are likewise not visible to the x-ray.(110) Nonintervention, not verisimilitude, therefore lies at the heart of "mechanical objectivity."(111) Even if and when a photograph reproduces nature, the result can be confusing--extraneous lines and edges can distract and confuse, for example.(112) Photography shifted, not eliminated, the sources of subjectivity.(113) Indeed, the work of an illustrator can be a superior means of communication, if it selects and emphasizes what is most important.(114)

Some modern theorists thus have adopted a polar position, emphasizing that photographs are thin slices of space and time, removed from context:(115) Because each image is only a fragment, its weight and meaning depends entirely on the context into which it is inserted.(116) Walter Benjamin wrote that photography strips an image of much of its "essence."(117) Traditionally, an image had a unique existence, determined by its history: Although mechanical reproduction does not change the physical appearance of the image, the "quality of its presence is always depreciated."(118) This may be a reflection of the fact that our sense of situation is now permeated by the omnipresence of cameras.(119) Like for quantum mechanics, the act of our observation effects the system: "What is real is not just the material item but also the discursive system of which the image it bears is part."(120)

Other theorists today do not deny the reality of photos, but instead assert that the images are super-real, or a different type of reality. "The photographer's power lies in his ability to re-create his subject in terms of its basic reality, and present this re-creation in such a form that the spectator feels that he is seeing not just a symbol, but the thing itself revealed for the first time."(121) The power of the camera is the production of a heightened sense of reality, one that reveals the "vital essences of things."(122) Some theorists describe photography as even being a complete language. "[T]here are picture parallels to almost every sentence structure and part of speech."(123) But as for speech, the comprehensibility of photography depends on the speaker:(124) As for speech, photographs exaggerate and minimize, elaborate and omit.(125) Thus, as for a human witness, a trier of fact must interpret any evidence they present; by no theory are photos infallible.(126)

Indeed, an awareness of photographic theory, despite the varying lines of thought of different theorists, points to the fact that courts should be engaged, not deferential, when dealing with photographs. "Although there is a sense in which the camera does capture reality, not just interpret it, photographs are as much an interpretation of the world as paintings and drawings are."(127) Even if courts cannot answer the questions posed by photographic theory, it can ill-afford to ignore them. As Sontag notes, understanding starts from not accepting the world as it looks.(128) But the courts do not appear to generally heed this principle. Although, as will be seen below, there are minimum requirements set for the admission of a photograph into evidence, photographs retain the status of "found objects--unpremeditated slices of the world";(129) they are simultaneously given the prestige of art and the magic of being real.(130) The lack of principled support for this treatment of photographs will only become more evident as digital imaging develops. Writing twenty years ago, Sontag noted that "[t]he picture may distort; but there is always a presumption that something exists, or did exist, which is like what's in the picture."(131) But even this is no longer true today.

B. Photography and the Law

A few legal theorists do not question that photography should, much less can, attempt to capture reality, and assert that, if anything, photographs should be granted even more deference than they are today: The logic that photographs are to be authenticated in a manner similar to maps and drawings is a relic, they say, because photographs are "universally accepted practically as a substitute for view of the subject itself."(137) As one early jurist noted, "we cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the wound on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show truth, why should not this dumb witness show it?"(138) The only exception would be if a photograph has been altered; only then it is no more trustworthy than a map or diagram, although still potentially admissible into evidence.(139)

But even without acknowledging contemporary photographic theorists, this line of reasoning has not been accepted by the law. Instead, the common law and the Federal Rules of Evidence have recognized from the beginning that there must be some check on photographs, to ensure that an image is genuine, or that if it has been altered, the nature of the changes are known and their substantive effects can be evaluated by the court. Under the common law, a court could admit a photograph into evidence if the photograph was relevant to a material issue and was properly authenticated.(140) The Federal Rules of Evidence essentially codified these requirements. Rules 401(141) and 402(142) of the Federal Rules of Evidence outline the relevancy requirement, and Rule 901 mandates authentication.(143) Thus, for well over a century, courts have required photographs to be both relevant and authenticated before admitting them into evidence.(144)

This Paper focuses on authentication, the element of the evidentiary process most subject to the effects of digital forgery. But something should be said about relevancy, as well as prejudice; a photograph may be altered in order to create or disperse them. If an altered photograph succeeds in such a mission, its effects will be difficult to undo. A trial court's determination regarding the admissibility of evidence will not be overturned absent clear abuse of discretion.(145) Appellate courts in fact rarely hold that a trial court abused its discretion by admitting a photograph.(146) The relevancy test is satisfied with relative ease: The basic rule is that all evidence relevant to the issues at a trial is admissible.(147) In determining relevance, the standard of probability under Rule 401 is "more . . . probable than it would be without the evidence,"(148) a very lenient requirement.(149)

Further, once an image has been viewed, it is hard to convince factfinders to "unsee" it.(150) Images are acknowledged to have disproportionate impacts on factfinders;(151) they can have a greater influence on a jury than oral testimony.(152) Indeed, this is one reason practitioners recommend their use:(153) "[T]he ability of photographic processes to accurately provide information is imbedded in the popular consciousness."(154) Factfinders even may be more vulnerable to disturbing events in photographs than in reality.(155) Relevant evidence may be excluded under Rule 403 on the grounds of prejudice, confusion, or waste of time.(156) But if a photograph that should have been excluded is admitted, a judge's instruction cannot simply erase what has occurred; photographs are unlike drawings and maps which are unlikely to incite passion.(157) Indeed, courts must be discouraged from themselves jumping to conclusions based on photographs, such as ruling that one is a conclusive demonstration of physical facts.(158) "[T]he courts should not engage in arbitrary deductions from physical laws and facts as shown by photographs except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other conclusion."(159)

As for relevancy, fulfilling the authenticity requirement of the Federal Rules of Evidence is not a complicated task. "The Federal Rules of Evidence do not require absolute certainty in authentication, but rather 'evidence sufficient to support a finding that the matter in question is what its proponent claims.'"(160) Courts historically have admitted photographs under two distinct theories. The first--the pictorial testimony theory--reflects a more conventional view of evidence: One who has personal knowledge of what a photograph depicts testifies to its accuracy.(161) Such a person is referred to as a sponsoring witness; the photograph is merely illustrative of his testimony.(162) The second theory is that of self-authentication. By it, "the photographic evidence is a 'silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness."(163) The basis for admission is the presumed reliability of the photographic process--essentially, an image is treated as its own sponsor.(164)

Under the pictorial testimony theory, laying a foundation for a photograph is a simple endeavor. Some theorists have urged that the courts should require a detailed foundation,(165) given that it is "common knowledge that distortion often appears in a photograph, by design or otherwise."(166) But the courts have not so opted.(167) The testimony of the photographer is not necessary; all that is required is the "[t]estimony of a witness with knowledge. Testimony that a matter is what it is claimed to be."(168) The witness should testify that he is familiar with a scene, how he acquired his familiarity, and that the photograph is a fair and accurate representation.(169) The witness need not testify to the chain of custody, where the photograph came from, who took it, when it was taken, or what has happened to it in the meantime.(170) The perspective of the photograph, camera, film, and process used also are irrelevant(171) All that matters is if the witness is familiar with what is depicted, and that the testimony establishing what is depicted is relevant, not unfairly prejudicial, and states the depiction is fair and accurate.(172)

In contrast, under the silent witness theory, the admission of photographs is a more complicated endeavor. There is no assumption that a photograph is what it purports to be; it nature and the reliability of the process used to create it must be demonstrated.(173) Further, the admission of photographs into evidence is also then governed by Federal Rule of Evidence 1002.(174) The Advisory Committee notes indicate that when a witness adopts a photograph as their testimony, this rule need not come into effect; but if the content of a photograph must be proved without sponsoring testimony, such as in a copyright dispute,(175) the "best evidence rule" does apply.(176) Whether this theory should be a grounds at all for the admission of photographs into evidence has long been in dispute. The traditional point of view is that a photograph is "nothing, except so far as it has a human being's credit to support it."(177) But today, virtually all jurisdictions provide an alternative route to the introduction of photographs through the silent witness theory,(178) placing trust in the mechanics of photography, unguided by man, as well in the ability of the courts to determine which photographic processes are worthy of that trust.

Theorists historically concluded that a photograph must be supported by a testifying witness.(179) But over time, this conclusion came to be accepted as both unnecessarily rigid and inconsistent with the evolution of technology. Given the amount of detail in a photograph, even under the pictorial testimony theory, despite a witness' "supposed familiarity with the subject he really is only a token sponsor."(180) What is relied upon ultimately even under the pictorial testimony theory is "the general reliability of the photographic process rather than the observing power of the verifying witness."(181) Further, even before the end of the 19th century, photographs such as of x-rays could be created that could never be seen by the human eye; it was inevitable that the courts would confront images created by cameras, such as of checks when placed in a "Regiscope" machine, that could be powerful evidence and yet could not have a testimonial sponsor.(182)

Over time, the courts have come to accept photographs taken through such processes. Most jurisdictions are in accord(183) that the silent witness theory views "photographic evidence in a modern, realistic light."(184) The "possibility of the photograph not representing the transaction it purports to is extremely remote.. . . in the absence of some intentional trickery to 'fake' the photograph."(185) If the silent witness theory were not adopted, not only would the admission of x-ray photographs be in doubt,(186) but so would that of any photograph which includes information not noticed by a photographer at the time it was taken.(187) Wigmore's "pictorial testimony theory" is simply at odds with reality, even in jurisdictions that still nominally embrace it.(188) But a form of authentication is still required: Photographs must "be sufficiently established in view of the context in which the photographs are sought to be admitted."(189) It is still necessary to know when a photograph was taken, that it is accurate, and that it shows what it truly purports to show.(190) In the case of a Regiscope machine, for example, a store employee may be called upon to testify as to when, where, and under what circumstances a Regiscope was utilized, and that it was standard procedure to do so.(191)

Photographic authentication standards have become even more relaxed in the past decade, since United States v. Rembert.(192) Because photography is not an exact science, the law has not set absolute foundational requirements: Courts only require "a strong showing of the photograph's competency and authenticity."(193) The Rembert court recognized that there was a need to modernize standards of admissibility: "The uses of photography have not stood still and neither should the law. Nor has the law on the uses of photographic evidence remained unaffected by the changes in society."(194) But the court concluded that those standards should be lowered. All that is now necessary to meet the threshold requirement of authentication is a "showing sufficient to permit a reasonable juror to find that the evidence is what its proponent claims."(195) The decision vividly demonstrates the judicial reliance on the accuracy of photographic evidence: By liberally admitting photographs into evidence, they implicitly accord substantial faith to the reliability of the photographic process.(196) But when the court in Rembert purported to recognize technological change in the role of photography, its authors apparently had no conception of the magnitude of the change that was taking place.(197) It can be difficult to foresee future uses of technology.(198) But even then the potential of digital forgery should have been apparent--and looming ever larger.(199) The court's failure to do so is exemplary of how far there is to go in dealing with the potential of digital imaging in the legal context.

Current law acknowledges that forgery is possible(200)--but it embraces photographic images, trusting factors such as the rarity of forgery and the variable weight a photograph may be given once admitted into evidence to counter manipulation.(201) An example of the law's leniency is that courts allow the admission of posed photographs:(202) Such photographs are subject to additional scrutiny--a photograph must be not just a faithful reproduction of the facts it purports to show, but the "arranged" facts must be substantially and demonstrably accurate reconstructions of the original facts.(203) Nevertheless, the authenticating witness need not have directed the re-enactment, but merely must testify that the posed photograph is a faithful depiction of original facts.(204) Such leeway is ripe for abuse. But it also at least shows that the problems posed by digital forgery are not entirely novel; crafting a response will be more a matter of evolution than revolution.

C. A Changing Paradigm

The quality of digital images still do not approach the sharpness of those recorded on film, although usually adequate for display on a computer monitor; a CCD typically has about 350,000 pixels, while ordinary 35mm film provides the equivalent of 20 million pixels(215)--which on computers would amount to between 18 and 36 megabytes of information.(216) A further drawback of digital cameras is how they deal with color.(217) Each CCD cell detects only brightness. Inexpensive digital cameras compensate by placing a filter over the CCD so that one half the cells are covered by green filters, one quarter red, and one quarter blue.(218) But as a result, images only approximate the original scene's color--the camera must interpolate, based on the color of nearby pixels, what color a pixel should be in reality.(219) As with other technology, however, the quality of products available is expected to improve and their price to drop with the passage of time.(220)

Price decreases and technological improvements already have brought digital cameras out of the "toy" category.(221) Some analysts estimate that in four years the quality of digital cameras will catch up with film, and then will replace much of the film market.(222) Film cameras still dominate the camera market--30 million were sold in 1996, compared to 1.3 million digital cameras.(223) But the digital market is growing; the 1996 sales were quadruple those of the preceding year, and sales were expected to double again in 1997.(224) Already digital cameras dominate a few sectors of the market; many commercial web sites, for example, are assembled with digital photographs.(225) Selling points of digital cameras already include the instant availability of pictures for use and zero capture cost, features of merit for both dedicated legal photographers and amateurs alike.(226)

But the pace of change has caught many, lawyers and laymen, by surprise. Only a few years ago, treatises anticipated that at least "for a while" the next generation of photography would use a combination of chemical and digital processes.(227) Indeed, even though digital cameras may not (yet) be superior technologically to film, commentators note that Americans, used to the relatively poor quality of TV pictures, appear not to fuss over low resolution images.(228) But this reason for the spread of digital imaging also points out in part why digital imaging poses problems for law; not only are digital images easier to manipulate than photographs created with film, but the lower the resolution of an image, the easier and less detectable is the manipulation of the photograph.(229)

Further, the implications of the ease of digital forgery are not just limited to photographs visualized with digital cameras. A scanner, in a manner similar to a digital camera, can take an existing photograph and transform it into numeric data, readable--and manipulable--by a computer.(230) In fact, a strip of film, the product of a chemical process, can be scanned into a computer, altered, and a new strip of film substituted, any change being "highly undetectable."(231) In addition, once in digital format, photographs can be copied as easily as any other computer files--albeit they are often very large files.(232) The quality of the image does not deteriorate during reproduction, no matter how many times it is copied.(233) If produced in volume, the cost of a CD-ROM with 600 million characters of information on it can be measured in pennies.(234) Further, the Internet has in terms of distribution made the CD-ROM obsolete practically overnight:(235) Now data can be sent instantly to anyone with a computer and access to a phone line.(236)

The arrival of the digital age requires a reconsideration of the trust law places in photography, because what was once unlikely is now easy--and may even be commonplace; the law as it is today simply cannot tell. Commentators do disagree as to exactly how easy it is today to alter images without detection.(237) What once "might involve chemicals and darkroom tools, manual retouching, or elaborate cutting and pasting," some say can now be accomplished by "almost anyone, with little training."(238) Certainly image-processing software, such as Adobe Photoshop or Adobe Premiere,(239) which can crop, cut and paste, add textures, airbrush, and so forth(240) have become affordable, as have computers; what required a $100,000 machine in 1980 required only a $7000 machine in 1990(241)--and the price/performance ratio has continued to improve.(242) The more people who take advantage of the technology, the less certain one can be as to how it is being used.(243) But the fact that with "sufficiently advanced technology . . . manipulations are merely a matter of pushing the right buttons"(244) still requires one to know which buttons to press.(245) Amateur forgeries which have so far come to light have been crude and detectable.(246) Nevertheless, given that a computer's business is manipulating digits,(247) if an image exists as series of them, it is difficult to discern on what basis one can decide that it has not been altered.

But as has been true for conventional photography, the danger that an image may be created from nothing(248) is not the only factor at work. Some digital processing techniques are akin to standard techniques to enhance images, such as enlargement and control over contrast.(249) For evidentiary purposes, digital imaging has notable advantages over conventional methods, such as ease of enhancement, greater depth of field (clearer images of objects at a distance) and efficient storage.(250) But some techniques are clearly problematic, such as the "morphing" of facial features to make an individual appear older or otherwise different than reality.(251) In between is a gray area, such as the selective removal of colors to clean up a background.(252) Further, digital techniques are more precise than conventional methods of retouching because any area of the image can be magnified and altered pixel by pixel.(253) Brightness can be changed, elements added and subtracted, apparent focus increased or decreased, lighting modified, or the image's border extended or contracted.(254) In sum, working with photographs on a computer eliminates tedious manual adjustments and time-consuming procedures in the darkroom--a power that can be used or misused.(255)

Digital imaging already has established itself as a useful forensic tool; for example, because it allows the immediate evaluation of a image.(256) Fingerprints often must be photographed while on the original surface. Fluorescent dye is often used to provide optimum results--but the exposure, filtration, and illumination techniques are tricky.(257) A digital image can be evaluated on the spot, to determine if it is of sufficient quality, or if it needs to be rearranged, recolored, or otherwise transformed.(258) In addition, once an digital image is created, it can be quickly prepared for a database search, compared on-screen, or be made part of a court display, speeding the process of justice.(259) In other forums, the advantages of digital photography for depicting the real long since have been noted and put to work. NASA uses digital techniques to clarify images of outer space and to add color to satellite pictures,(260) and to mold streams of data from space probes (that suffer from power and weight limitations) into a single image.(261) Thus, manipulation can make photographic images more real.

But digital imaging is also widely used to create the unreal.(262) A decade ago, Life produced in two and a half hours a photograph of a summit meeting between President Ronald Reagan, Palestine Liberation Organization Chairman Yasser Arafat, and Israeli Prime Minister Yitzhak Shamir by importing bodies, adjusting their size, painting a new background, and balancing the lighting and skin tones.(263) Today, such forgeries, such as the compilation of existing images to create pictures of boards of directors for annual reports, have become almost routine.(264) Two 11-foot by 29 foot backdrops (one day, one night) created for WCBS-TV news broadcasts in New York, for example, are the composites of a number of different photographs--with subtle changes such as the Empire State Building relocated so it is not hidden by the sports announcer.(265) Although the emulsion grain--the clumpings of molecules that form when film is developed--are visible, there are no scan lines--and thus few surface clues of the change.(266) Even fewer clues exist when an image is entirely artificial, with no adjustment necessary to account for the lighting, perspective, etc. of existing images.(267)

To date, most of the controversies over digital imagery have arisen in contexts outside of the law. But similar issues are here at stake: When a computer is used to create or change an image, the result is antithetical to notions of authenticity and historical time and space,(268) notions traditionally relied upon by journalists as well as by jurists.(269) "To many people, a news photo is a faithful representation of an actual, physical reality. They've come to depend on the idea that if they'd been there, this is what they'd have seen."(270) But journalists have failed to reach a consensus about the use of digitally manipulated photographs. Former National Geographic editor Wilbur Garrett defended the magazine's decision to move two pyramids on the cover of its February 1982 issue closer together: "The effect was the same as if the photographer had moved a few feet."(271) New York Newsday went farther to defend its "composite illustration" of Nancy Kerrigan and Tonya Harding skating together: "[W]hy must photos always be limited to speaking in the past tense? Why can't (carefully labeled) pictures sometimes be allowed to speculate on what might happen?"(272) Thus, unfortunately, the experience of digital imagery in other contexts provides few lessons for the law; even though the problems posed by digital forgery may not be new, what is to be done is mostly a question of first impression.

D. What Is To Be Done?

One response would be to update the Federal Rules of Evidence.(283) Many of the current definitions in the rules, which have not kept pace with technology, have the potential to "create substantial future mischief."(284) One commentator notes that "[t]he false assumption in the FRE is that computer data is similar to other forms of information capture, such as photography."(285) But information captured digitally is never fixed; it is always subject to manipulation.(286) The Best Evidence Rule, for example, considers print-outs of data stored on computers as originals,(287) a proposition difficult to accept given that "the advent of electronic photography means the end of the photo negative [as] tangible evidence of an event."(288) Further, unlike for a photographic negative, digital data means nothing without software to produce intelligible "output"; manipulation is inherent to the process.(289) It is true that, absent human intervention, software usually can be relied upon to produce an exact duplicate of the information that was put into the computer. But commentators also have observed that computer users tolerate a level of "perfection" that is relative, not absolute, and may not meet legal standards; accidental errors can be invisible and undetectable until it is too late.(290)

Given the likely difficulties of amending the Rules,(291) a further means by which the law could respond to digital photography would be to use Rule 403 as it stands to virtually eliminate the use of photographs as evidence.(292) Citing Rule 403, one commentator suggests, courts could simply conclude that because of the potential of abuse from photographic manipulation, photographs carry too great a danger of unfair prejudice to be admissible.(293) Others similarly conclude that the acceptance of photographs at least should be "greatly curtailed."(294) Again, not only the silent witness theory but the pictorial testimony theory ultimately rely on the infallibility of the photographic process.(295) One commentator asserts that in fact photographs are rarely necessary;(296) in decisions of the Supreme Court, they never have been indispensable(297) ; further, any prejudice is likely to be serious.(298) This approach would be drastic, however. Intuitively, it seems unlikely that Supreme Court cases are a representative sampling; curtailment might disallow authentic and valuable evidence, even while still allowing fabrications to be admitted.(299) Further, commentators doubt that the problem is so serious that courts have to resort to such an extreme measure--at least at the present time.(300)

A less drastic alternative would be to broaden the scope of review given to photographs before they are admitted under the Rules,(301) although the trade-off would inevitably be that the measures would be less effective. For example, the determination of the relevance and authentication of photographic evidence currently rests within the trial court's discretion and will not be overturned absent a clear abuse of that discretion.(302) But if, or so long as, the courts are unable to detect fakery, such deference by appeals courts may not be warranted; de novo review could be justified. Another enhancement would be for courts to require that potentially misleading computer-generated images be conspicuously labeled, to avoid any misrepresentation to the court.(303) An analogy lies in that if courts admit posed photographs,(304) vigorous authentication is required.(305) But if the primary concern is intentional deception, such a standard might have little practical effect. Further, it might not derail the emotional impact of images on factfinders,(306) even if, as some commentators recommend, courts adopt detailed jury instructions, tailored to a variety of evidentiary contexts, to ameliorate the potential effects of possibly misleading or prejudicial evidence.(307) In addition, no one has even proposed a comparable set of instructions or guidelines for judges themselves, who are also susceptible.(308) Commentators have noted with concern that courts confuse photographic representations of fact with facts themselves.(309)

Another response might be to limit the authentication of photographs to the photographer himself; it would, at least in theory, ensure that photographs are not manipulated without the photographer's knowledge, and that no "new" image is later misrepresented as the original.(310) But again, this solution seems drastic--as well as dependent on that photographers recall in perfect detail the images they create.(311) Alternatively, the courts could require the demonstration of chain of custody.(312) Although the authentication of movie film historically has resembled that of photographs,(313) courts once suggested that proof of chain of custody might be required,(314) although this condition was later abandoned.(315) Indeed, even today some commentators recommend that lawyers demand the negative from which any proffered photograph was made: "Some startling discoveries are frequently made."(316) To that end, some commentators recommend that law enforcement and public safety agencies establish standard operating procedures to dispel any doubt about the integrity of digital imagery for evidentiary purposes.(317)

A further alternative would be to retain existing authentication processes, but to require the stricter questioning of any authenticating witness--"special care,"(318) in the words of one commentator--so that the court may determine the probability that an image has been altered and shape its inquiry and decision in regard to its admissibility appropriately.(319) Questions or topics of inquiry might include: who took the image;(320) what is the photographer's relationship to the issue in question;(321) how else might the image have been constructed;(322) is the use of the image in court related to the use for which it was made;(323) do the claims of the parties rest on the same notions of photographic meaning;(324) and are the narratives of witnesses reconcilable with--or relevant to--what is represented tangibly in a photograph.(325) But again, this approach does not resolve all possible difficulties; an authenticating witness may be untruthful. But, as Wigmore notes, an untruthful witness is at least more a problem of perjury than photography.(326)

If the pictorial testimony theory were to be made subject to greater constraints than today, because a photograph cannot or should not be taken at face value,(327) then almost inevitably the silent witness theory could not continue to be utilized as presently constituted either. But the theory potentially could be rebuilt, on a new foundation. Wigmore claimed that x-rays were admissible, despite their lack of a testimonial sponsor, under a different standard than that for ordinary photography:(328) "[T]hat the instrument or process is known to be a trustworthy one."(329) Further, Wigmore indicated that the principles for the admission of x-rays "may serve as useful guidance for other new technologies."(330) If there is a bona fide doubt that an image is authentic, one should evaluate: the status of the particular instrument used;(331) the qualifications of the witness operating the instrument and taking the photograph;(332) and the operator identify the person or object photographed.(333) Further, a witness should identify the photograph and the conditions at the time the photograph was taken.(334) Such a test, based on the principles of Wigmore, could permit the continued admission of photographs without a testimonial sponsor. The test is a sliding scale: The weight to which photographic evidence is entitled increases as the number of reliability indicia increase.(335) Commentators in fact have noted the relative merits of this test compared to the Frye(336) test; Wigmore's principles are not handicapped by ambiguity and a fundamental failure to account for the advance of technology.(337) But still, as above, the test may do little to stop and deter intentional fakery.

A conventional means by which to attack the veracity of a photograph is to allege that standard procedures were not followed.(338) Even though chain of custody is not a requirement today,(339) it is therefore already good practice for parties to document the history of any digital image, adopting standard operating procedures.(340) First, images should be recorded in a medium that cannot be altered, such as a CD, and stored as any other evidence for which a chain of custody is maintained.(341) Second, images should include information regarding their creation, such as the camera's make, model and serial number, camera settings, and the date and time the image was captured.(342) Third, anyone who prepares exhibits for courts should be trained in digital image processing, and know which images may require a notation that changes are not prejudicial.(343) Fourth, rigorous procedures should be established for the entering of works-in-progress into file systems; if an image is manipulated, there should be an "audit trail" of how an image was changed, to dispel any claim of impropriety.(344)

Yet, none of the above courses of action can provide a complete solution in a world of digital imagery. As do most of the approaches above, the suggested operating procedures assume honest actors. But even police, for example, differ on what is acceptable conduct in regard to photographs. A former Chief Inspector of the Birmingham, England police wrote that "[p]hotographs made for the purpose of crime detection or for production in any court proceedings should not be retouched, treated or marked in any way."(345) But, as discussed above, digital imaging has proven itself as a forensic tool in large part because of how easily it can alter images.(346) Further, the above proposed standard operating procedures assume that evidence will only be admitted under the pictorial theory: "Imagery is not evidence. . . . Ultimately, evidence in a police case revolves around the integrity and veracity of the witness presenting the image, who must demonstrate its authenticity to the court."(347) This does not reflect reality.

But the fact that there is no perfect solution does not excuse the law from taking action. Already courts are considering cases which, while not reaching full implications of digital forgery, have come very close to doing so; in two recent cases, courts considered the propriety of using digital technology to enhance self-authenticating photographs. In State of California v. Phillip Lee Jackson,(348) a set of fingerprints at a crime scene proved difficult to evaluate through conventional methods.(349) A digitally-enhanced image was introduced; a computer adjusted the photograph's brightness, contrast, size, and color, allegedly without damaging the integrity of the prints.(350) The photograph was ruled admissible.(351) Similarly, in State of Washington v. Eric Hayden, a suspect set of palm prints were digitally enhanced.(352) In both cases, standard operating procedures were used to ensure the integrity of the process; for example, examiners had not seen the direct print of the defendants, so the likelihood of fakery and frame-up was minimal.(353)

The above cases demonstrate that the need for action at a higher level is inevitable. Digital technology is in many ways fundamentally at odds with notions of evidence; electronic media are designed to be reused, with no equivalent to the permanently archived, physically unique photographic negative.(354) The law should confront this challenge directly, rather than let it play out haphazardly, in ad hoc d