digitally recorded images- as evidence

Question:

    Ken, 
In speaking with a ranking member in Law Enforcement, the question of “First 
Evidence” came up during a conversation relating to digitally recorded images. 
Specifically the question was even though the images are watermarked to 
prevent tampering, and we know the image is authentic, how does the court know that 
the image is the “first evidence” or original copy produced from the 
recorders hard drive (other than sworn statement and affidavit from the individual 
who copies the image)? It was stated that a good defense lawyer could get an 
image/images dismissed as evidence if “first evidence” cannot be shown. Is there 
any precedence set that you are aware of that states once an image is 
recorded and is watermarked/secure from tampering that any copy produced from the DVR 
is acceptable as evidence? Please advise on this matter. Thanks very much!
VBRgds,
Paul M Gordon 
Sales Representative

Answer: 

A digitally recorded image is considered a "silent witness" because the 
images speak for themselves.  To get the image entered into evidence an attorney 
must demonstrate to the court that both the process or system used to record the 
event and the image produced is reliable.  To establish that reliability, an 
expert witness is usually called to testify how the film was loaded into the 
camera, how the camera works and is activated, how the film was removed, and 
how it is handled after removal and whether the process produces reliable 
results.  If all of this information is provided, the court will usually allow the 
digitally recorded image into evidence.
 Traditionally, due to the possibility of distortion, an attorney had to lay 
a strong foundation in order for digitally recorded images to be admitted into 
evidence.  At a minimum, it had to be established that the equipment was in 
good working order, the equipment operator's qualifications had to be listed, 
every person who handled the film had to be accounted for (also known as the 
"chain of custody", the people and objects depicted in the film had to be 
identified and a person who was present when the activity was filmed had to testify 
that the film was an accurate depiction of the occurrence.  Today, all that is 
needed is a person who was present when the activity occurred to testify that 
the images depicted on the film are accurate representations of the event.  
In some instances, the digitally recorded images can be admitted into evidence 
if the other traditional requirements are met absent the testimony of a person 
present at the time of the occurrence.  
 Digital imaging comes within the scope of  NY CPLR §4539(b), also known as 
the Best Evidence Rule.  The Best Evidence Rule states that "[a] reproduction 
created by any process which stores an image of any writing, entry, print or 
representation and which does not permit additions, deletions, or changes 
without leaving a record of such additions, deletions, or changes, when 
authenticated by competent testimony or affidavit which shall include the manner or method 
by which tampering or degradation of the reproduction is prevented, shall be 
as admissible in evidence as the original." Therefore, provided a competent 
person submits an affidavit or testifies that the image is authentic, cannot and 
has not been tampered with or degraded, as in the case of a watermark, the 
image will be admitted into evidence as if it was an original.