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It would appear that Samsung has admitted that images captured using their mobile phones' "Scene Optimizer" feature (which can be disabled) are not necessarily an accurate photograph of what the user thought they were recording.

https://www.theverge.com/2023/3/15/23641069/samsung-fake-moon-controversy-english-language-blog-post

Specifically, the saved image, after processing by the "Scene Optimizer", might be a "close equivalent" to what the user was looking at, but have originated at a different location on a different date. Or alternatively, it might be a composite incorporating indeterminate proportions of multiple original images.

As a general question, have any legal systems started to take seriously the possibility that a stored image might not be an accurate representation of the scene?

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    I'm not entirely happy with the edit which has emphasised "scene optimiser" since I have seen no indication that this is an optional feature that can be disabled. Rather, "scene optimiser" is an inherent part of Samsung's cameras, in much the same way as "a lens" is. Nov 25, 2023 at 21:57
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    Rollback is an option
    – user6726
    Nov 25, 2023 at 21:59
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    @Jen, I'm OK on the balance. However I note somebody else's edit "which can be disabled", this still leaves a problem since I presume it can't be done retrospectively i.e. a doctored image can't be "undoctored". Nov 26, 2023 at 8:40
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    Let's roll back all these comments 😆 Nov 26, 2023 at 23:31
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    @RobbieGoodwin Stop putting words into my mouth and insinuating that I've been moving the goalposts. The specific question was, and remains, about Scene Optimizer which can generate a photograph containing material from a time and place other than that at which the image was supposedly captured. Dec 3, 2023 at 8:15

4 Answers 4

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You are asking about what is known as "authentication" of real evidence.

Photographic and digital image evidence is not presumptively inadmissible, but nor is it automatically admissible. Rather, this evidence is conditionally admissible. A threshold to admissibility of an image is its authentication. This depends on "(1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so" (R. v. Andalib-Goortani, 2014 ONSC 4690, citing a long line of cases adopting this standard in Canada, but I understand this approach to be the norm across the common law).

This requires that the party seeking to have the evidence admitted provide some evidence that the image is a fair representation of the facts portrayed. This would normally be via testimonial evidence from a witness (often, but not necessarily, the photographer).

On direct examination, the party seeking to introduce the photo as an accurate representation would ask the witness about how the photo was captured, whether there was any special image processing applied during or after capture, etc.

The camera's automatic process can be a viable avenue for cross-examination of the witness. If relevant, this could include questions about color correction, zoom settings, chromatic aberration, features such as "Scene Optimizer," etc.

Either party might also call other witnesses to explain how any automatic features work, the extent to which they might modify a scene, and whether the user would have had any indication that it was operating. They might also explain how to interpret any associated metadata that might indicate that special processing was applied.

It is not necessary that complete accuracy be established. Even non-digital cameras merely produce projections of a scene that might be warped or otherwise altered by the lens. What will matter is the nature of any modifications and whether the image provided to the court is substantially accurate with respect to the material details. As one court has said:

complete accuracy of a photograph or video is not a prerequisite to admissibility. So long as, despite a change or alteration, the image is substantially accurate, is a fair representation of what it purports to show and is not misleading, the image may be admitted in the discretion of the judge, upon the application of a probative value/prejudicial effect analysis.

Even if admitted, the weight given to the information in the image is ultimately a question for the jury or judge (when sitting alone as fact-finder).

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  • So, what happens if on direct examination, the party seeking to introduce the photo does not ask the witness anything beyond that they took it? Will the other party object the admissibility on the grounds of lack of those extra questions? Would the judge sustain it (as opposed to overruling with "you can now cross-examine on those questions if you wish")?
    – Greendrake
    Nov 26, 2023 at 20:13
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    @Greendrake: If the other party accepts the photo as-is, then there is no dispute about its admissibility. This is just common sense; where parties agree there's no need for the courts to step in.
    – MSalters
    Nov 27, 2023 at 8:11
  • I'm accepting this answer on the basis of the high regard in which it appears to be held by members of the community, many of whom are probably better informed in this area than I am. However I think a lot rides on CGCampbell's comment: "A problem here is that the lawyers, and maybe the judge as well, need to be a minimally amount of technically smart, at least enough to recognize the problem." Dec 4, 2023 at 12:48
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It has long been known that digital data can be (somewhat) easily manipulated, you just have to know how. Nevertheless, digital data remains admissible in court in both criminal and civil proceedings. Any data can be attacked as unreliable, and in some cases a type of data might be inadmissible if it is completely unreliable.

It is up to the jury to decide whether they believe the particular piece of evidence, which means it is up to the attorneys to advance the best arguments possible that the particular item is / is not reliable. This is a question of very specific facts, so the courts have not generally rules that voice recordings or photographs are inadmissible because they might have been manipulated. The jury would have to look at the expert testimony to decide if the object was manipulated.

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  • That is true. However, I think it would be generally agreed that a camera seized by the police some small fraction of a second after the shutter had been depressed would have contained a truthful image. Nov 25, 2023 at 21:59
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    I might be able to show you how to put a "false" image on a camera, especially one that existed before the shutter had been depressed. That's what the expert witness would explain to the jury.
    – user6726
    Nov 25, 2023 at 22:17
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    @user6726 A problem here is that the lawyers, and maybe the judge as well, need to be a minimally amount of technically smart, at least enough to recognize the problem. And before you say that any lawyers (and judges) ARE minimally technically proficient, allow me to completely and thoroughly disagree. A family member was in a non-jury case, and the amount of bad technical discussion was astounding to me, and I couldn't even speak to the lawyer for my family member, because the lawyer wouldn't let me.
    – CGCampbell
    Nov 28, 2023 at 16:16
  • I don't think "minimally smart" is the correct bar. Instead, the smart lawyer will consider the possibility that he needs an expert witness, and needs to have a clue where to find such a witness. The judge OTOH plays a minimal role, though in my area (language) they tend to be ignorant of technical facts of language and err on the incorrect side of inadmissibility.
    – user6726
    Nov 28, 2023 at 16:26
3

In the US, from precedent, it's admission can be successfully challenged by opposing council, if fine details are important.

In the recent and high-profile Rittenhouse trial, the defense objected when the prosecutor tried to zoom in on a video on his Ipad, because Apples proprietary and unknown zoom algorithm may introduce extra pixels and that was sustained. Later, the prosecution had to get an expert witness to explain exactly what zoom algorithm was used to enlarge a photo and how it didn't alter pixels, before it could be admitted: https://journals.library.columbia.edu/index.php/stlr/blog/view/417

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The starting point is that photos are generally admissible (provided that the person who took them testifies so), regardless of what technology was used to take them.

It is up to the opposing party to suggest that the photos may be inaccurate or tampered with. Usually the person who took them will be cross-examined about what device they used and with what settings. The party may also call an expert witness to testify that the device/settings is known to produce inaccurate/modified picture.

The jury will then decide whether the picture is accurate enough or not.

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    I think this is actually wrong in most (maybe all) common-law jurisdictions. The burden is basically always on the proponent of the evidence to establish that a photograph is an accurate representation and otherwise admissible. It's a low bar, to be sure, but I've never heard of a court shifting that burden to the opposing party.
    – bdb484
    Nov 25, 2023 at 23:44
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    That's generally not going to be adequate, I don't think. Someone needs to further testify that the photograph actually/accurately depicts whatever it shows, and that's where things could go awry in the OP's scenario.
    – bdb484
    Nov 26, 2023 at 7:59
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    Yes, all evidence needs to be authenticated. I don't know of any jurisdiction that would just allow any evidence in without a person testifying to what it is.
    – bdb484
    Nov 26, 2023 at 22:44
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    @MarkMorganLloyd Ben Voigt is correct. The question is not about how the camera works, but whether the camera works. To lay that foundation, you just need to ask the above questions. You'd use the same procedure if you recorded a legally relevant phone call or sketched out the scene of a car crash. "Is this what you wrote/recorded? Does it accurately represent what happened?" That's typically going to be enough.
    – bdb484
    Nov 27, 2023 at 22:28
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    At common law there is a "presumption that mechanical instruments were in order when they were used … but the instrument must be one of a kind as to which it is common knowledge that they are more often than not in working order": Castle v Cross [1984] 1 WLR 1372. So it's not a universal rule that the proponent of a photograph (or photocopy) must adduce explicit evidence of its accuracy.
    – sjy
    Nov 29, 2023 at 1:20

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