J. Michael Conley
The more things change the more they remain the same. As technology has rapidly advanced to facilitate courtroom use of digital imagery and to enable relatively easy creation or alteration of images, I have often thought that such developments would increase rather than decrease the importance of credible verbal testimony providing foundation for the image. In other words, a picture may still be worth 1000 words, but only where the factfinder believes that it is what it purports to be.
Some judges have reacted to digital technology with suspicion and near panic by requiring the equivalent of foundation testimony from a photo developer. In reality, the predicate of evidence of any imagery, from a photograph to a witness's blackboard sketch, has been the reliability credibility of the person vouching for the image by testifying that it's fairly and accurately represents what it is offered to depict.
Recently, in Renzi v. Paredes, 452 Mass. 38 (2008)-which, along with its companion case of Matsuyama v. Birnbaum, has received considerable fanfare for other reasons - the Supreme Judicial Court addressed the admissibility of digital photographic evidence reaffirming an approach that is sensible, manageable, and faithful to established trial practice.
"The use of demonstrative aids, including digital photographs and computer-generated images, is now commonplace in our courts. See generally 2 McCormick, Evidence § 214 (6th ed. 2006). A judge has broad discretion in the admission of such evidence. See Commonwealth v. Noxon, 319 Mass. 495, 536, 66 N.E.2d 814 (1946) (admission of photographs largely in discretion of trial judge). Authentication is a preliminary question of fact for the judge to decide. Id. at 537, 66 N.E.2d 814. The person testifying as to the substantial similarity of the photograph and the original need not be the photographer but may be a person familiar with the details pictured. SeeCommonwealth v. Weichell, 390 Mass. 62, 77, 453 N.E.2d 1038 (1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d 698 (1984) ("the best evidence rule does not apply to photographs"). See generally H.J. Alperin & L.D. Shubow, Summary of Basic Law § 10.151 (4th ed. 2007). When, as here, the demonstrative photograph is generated as a digital image or video image, the judge must determine whether the image fairly and accurately presents what it purports to be, whether it is relevant, and whether its probative value outweighs any prejudice to the other party. See, e.g., Commonwealth v. Leneski, 66 Mass.App.Ct. 291, 294, 846 N.E.2d 1195 (2006), quoting Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986), and Commonwealth v. Mahoney, 400 Mass. 524, 527, 510 N.E.2d 759 (1987) ( "videotapes are 'on balance, a reliable evidentiary resource,' ... and ... 'should be admissible as evidence if they are relevant [and] provide a fair representation of that which they purport to depict' .... [D]igital images placed and stored in a computer hard drive and transferred to a compact disc **818 are subject to the same rules of evidence as videotapes"). See also 2 McCormick, supra (enhanced images within category of demonstrative aids so long as they accurately illustrate what witness has to say). Concerns regarding the completeness or production of the image go to its weight and not its admissibility. See Commonwealth v. Leneski, supra at 295-296, 846 N.E.2d 1195."
Renzi v. Birnbaum, 452 Mass. 38, 51-52 (2008).
Keep it in your trial notebook.
