Authenticate is a collection of the most useful, real-world-application authentication filters and techniques identified by image analysts, based on hundreds of scientific papers and studies. Ms. Miller has lectured numerous times on issues ranging from closing arguments to evidentiary foundations and has served as an adjunct professor at Florida International University. 58 Oja, 292 So. 57 But see Kindred v. State, 524 N.E.2d 279, 298 (Ind. Given the well-known history of hoaxes and manipulations of traditional photographs, it is unreasonable to suggest that digital photographs should be treated differently because they are more easily altered. 9 Mikkel Aaland, Witness to History: The Digital Camera, Take a Look at the First Digital Cameras, Feb. 11, 2004. www.techtv.com/callforhelp/print/0,23102,03473780.html. In fact, when confronted with the issue of whether digital photographs should be subjected to a more stringent predicate, the Supreme Court of Georgia responded: “We 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.”69. E-mails are now commonly offered as evidence at trial. 62. Karim Nice & Gerald Jay Gurevich, How Digital Cameras Work, http://electronics.howstuffworks.com/digital-camera.htm. 20 Id. Both digital photographs and traditional photographs are created using a camera equipped with a lens and a shutter.11 The shutter acts as a barrier to light between the lens and the recording medium.12 In both digital and traditional photography, the recording medium is exposed to light for a short period of time and memorializes the image. The courts and savvy defense attorneys and prosecutors have begun to understand how easy it is to manipulate a digital photo, so experts are often asked to analyze the authenticity and provenance of digital images. 2d 308 (Fla. 1982) (recognizing limited exception to pictorial testimony theory where photographs speak for themselves. After first demonstrating that the evidence is relevant pursuant to FRE 401, the attorney proffering this evidence must establish authenticity: Was the e-mail sent to and from the persons as indicated on the e-mail? 64 State v. Wright, 265 So. See note 51 and accompanying text). Id. There is still a requirement for a live witness to testify to events that he or she personally observed. from Columbia University in 1994 and her J.D. at 72. 25 Mitchell Stephens, What’s Fair in Changing Photos?, Newsday, February 24, 1994, at 115, available at www.nyu.edu/classes/stephens/Let%20Pictures%20Speculate%20page.htm. 48 Id. 39 Charles W. Ehrhardt, Florida Evidence §901.1 (2003 Edition). Thereafter, it is left to the adverse party to challenge the authenticity of a given photograph. These recommendations, when utilized in conjunction with one of the many available software applications that create accurate logs of a photograph and a history of changes involving the photograph, will prepare any litigator for an eventual challenge to the authenticity of a digital photograph.78 q. In addition, if the e-mail has been produced in response to a sufficiently descriptive document request, the production of the e-mail in response may constitute a statement of party-opponent and found to be authenticated under FRE 801(d)(2). 6 Hannewacker v. City of Jacksonville Beach, 419 So. 23 Id. 1988) (“[I]n cases involving photographs taken by automatic cameras, such as Regiscopes or those found in banks, there should be evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and chain of custody of the film after its removal from the camera”). 7   July/August 2004   Pg 38. Silent Witness Theory There is one situation in which courts have found it appropriate to change the predicate for the admission of a photograph into evidence. at §401.2. 63 Id. 77 Scientific Working Group on Imaging Technologies (SWIGT): Definition and Guidelines for the Use of Imaging Technologies in the Criminal Justice System, June 6, 2002, www.theiai.org/swgit/. Amped Authenticate is the leading forensic software for unveiling the processing history of a digital image. Here, a witness with personal knowledge may testify as to the e-mail’s authenticity, which typically is the author of the e-mail or a witness who saw the proffered e-mail drafted and/or received by the person the proponent claims drafted/received the e-mail. Amped Authenticate provides a suite of powerful tools to determine whether an image is an unaltered original, an original generated by a specific device, or the result of manipulation using a photo editing software, making its admissibility as evidence questionable. In Oja v. State, 292 So. The test for determining relevancy is Federal Rule of Evidence (FRE) 401, which provides: “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Once the evidence is determined to be relevant, then it must be determined to be authentic. The court also decided that a photograph is a "writing" and stated: ...Authentication of a writing is required before it may be received in evidence. It is true that manipulation is even easier than it was before. This issue can prove daunting to newer practitioners as well as more seasoned practitioners who may not be as knowledgeable as to how to introduce into evidence e-mails, texts, or Facebook posts. 24 New York Newsday, February 16, 1994, cover. 22 Id. Kennedy v. State, 853 So. 2d 855 (Fla. 1969), rev’d on other grounds, 408 U.S. 935 (1972). She received her B.A. However, the “pictorial testimony” theory only governs the admissibility of evidence; it does not govern the weight afforded to a photograph by a fact finder. 2d at 535. (Evid. The science behind digital photography is very similar to traditional photography. ‘To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.’ 2d 532, 537 (Fla. 1st D.C.A. Often, these are typewritten business records. Anyone familiar with the scene can authenticate a photograph and it does not necessarily have to be the photographer. It is true that digital photographs have the capacity to be manipulated, just like their technological predecessors. 4) What is a photograph and what isn't and how to tell the difference 5) 'Original,''printed later' and a few other important concepts 6) Identifying standard photographic processes: introduction 7) Albumen prints: the most common 1800s photograph “Pictorial Testimony” Theory Photographs have long been deemed admissible in Florida courts.35 A photograph may be admissible, under the “pictorial testimony” theory,36 “if relevant to any issue required to be proved in a case.”37 The courts have determined that “[p]hotographs can be relevant to a material issue either independently or by corroborating other evidence.”38 Once the relevancy hurdle has been overcome, the predicate for authenticity must be established.39. Typed documents or hand-drawn pictures can be reproduced or forged with much less effort than a convincingly altered digital photograph. As with all other types of evidence, digital evidence must be authenticated in order to be properly introduced at trial. 14 International Center of Photography, Encyclopedia of Photography 145 (1984). Traditional film must be subjected to a process commonly referred to as developing.30 Photographs will almost always be developed before an adverse party sees them. 70 Hannewacker, 419 So. And thanks to social media and the prevalence of high-quality mobile phone cameras, there is a dramatic increase of images submitted as evidence by citizens and witnesses, to law enforcement agencies. Once that is established, the social media post must be authenticated. 2d 71 (Fla. 2d DCA 1974), the defense appealed the admission of such a photograph.54 The offering party proceeded under the “pictorial testimony” theory, first establishing relevance and then calling witnesses to testify that the images in the photographs fairly and accurately depicted the check and the defendant.55 Appellant contended that prior to the admission of the photograph into evidence, it was necessary to call “experts or persons responsible for installation and maintenance of the camera.”56 The Second District Court of Appeal rejected this argument, concluding that a traditional predicate was sufficient for admissibility.57 The Regiscope photograph was admitted under the “pictorial testimony” theory.58 The court reasoned that because there was a witness present who had personal knowledge of that which was depicted in the photograph, the Regiscope’s photograph was merely illustrative of the witness’s observation.59 This reasoning was adopted by the Third District Court of Appeal shortly thereafter.60, Courts have employed similar reasoning when confronted with technological advances such as X-ray films,61 videotapes,62 motion pictures,63 and color photographs.64 With each new advance, adverse parties raised the same objection.65 The parties argued that this new technology required a new rule of admissibility.

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