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Altered perception: Photo evidence may not be what it seems

By: dmc-admin//January 18, 2010//

Altered perception: Photo evidence may not be what it seems

By: dmc-admin//January 18, 2010//

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The task of getting 47 judges together for a photo may sound like a daunting chore.

But for Milwaukee County Circuit Court Judge Charles F. Kahn, Jr., it was more of an exercise in creativity.

Only 44 of the county judges were physically present for a photo session in May. So Kahn inserted individual photos of the three absent judges and swapped out solemn expressions for smiles on several others.

“The final picture hanging in the office of the Chief Judge has been substantially altered,” he said. “There are 19 new faces and 3 entirely new judges.”

While the end product in this case was a harmless display of photo doctoring, the story illustrates that attorneys increasingly need to be aware of the possibility of digital alteration when it comes to photographic evidence.

Any visual image can be altered to create an entirely different theme, noted Kahn, who sits in Milwaukee’s civil division.

“It’s a very challenging [area],” he said.

Criminal and P.I. cases

Milwaukee criminal defense attorney Raymond M. Dall’Osto agreed that lawyers need to view photo evidence in a digital age with a more skeptical eye.

In the criminal arena, one issue that can arise in child pornography cases is whether a photo was that of an actual minor or a virtually created image.

Dall’Osto, of Gimbel, Reilly, Guerin & Brown LLP, noted that in 2002 the U.S. Supreme Court struck down a criminal law that prohibited possession of virtual child pornography (Ashcroft v. Free Speech Coalition, 535 U.S. 234).

He advising carefully reviewing stored images to determine if they are computer generated or a real person.

“I always ask in discovery for mirror images of the hard drives so an independent expert can review the purported illegal images,” he said. “Not only as to when, from where and how downloaded, last modified and last accessed, but also for indicia of alteration, computer generated images and morphing.”

In personal injury cases, a common concern is confirming who took a picture or where it may be stored on a computer.

To avoid problems, Michele A. Vaughan, of Boller & Vaughan SC in Madison, said her firm generally sends out its own investigator to take photos of an accident scene or injuries.

Often this is because client photos are low quality, said Vaughan, but having an investigator take pictures also helps eliminate questions about authenticity and origin.

“It really takes out a lot of the unknown,” she said.

Milwaukee personal injury lawyer Victor C. Harding noted that if you do have pictures retaken, you want to have your investigator get out to the scene soon after the accident, if possible, because some evidence may be temporary.

Smudge marks on a car or skid marks on a road are key elements to capture early, he said.

“Stuff can rub off in a day or two,” said Harding of Warshafsky, Rotter, Tarnoff & Bloch SC.

To their knowledge, neither Harding nor Vaughan has encountered fraudulent photo evidence in a case. They suggest that most clients probably lack the expertise to convincingly alter a photo.

“I try to take clients at their word, because it gets expensive when you have to investigate your own client,” Harding said.

But Dall’Osto urged attorneys to make sure they have enough knowledge to spot a potential problem. He recently took a Photoshop class and learned that things like unnatural shadows and light variances can indicate a picture has been altered.

“Most people will just accept a photo for what it is and assume it’s an accurate portrayal of the scene,” he said. “But as I often tell other lawyers and clients, we’re not paid to assume.”

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