LAW OF EVIDENCE

EVIDENTIARY VALUE OF PHOTOGRAPH

Detailed study into the Indian laws and a comparison with USA and
Federal Laws of photograph as an evidence.

Ezhil Kaviya. B - 17BLA1017

Aarathi Manoj - 17BLB1025
 Evidentiary Value of Photograph

Introduction
Pictures are more demonstrative than other documents and can have a greater impact they
have been used as a piece of evidence in the courts. The concepts of photographs have also
changed with time from traditional analog photographs to the modern day digital
photographs. The concept of photographs was they were captured and required representation
on a film or paper. But now the traditional photographs have been replaced with new digital
photography where the whole concept of concept of capturing or storing of images is
different from the traditional one. The concept of digital photographs they can be said to exist
in the digital form. This would mean that these photographs do not require any film or paper
for their generation or storage. The traditional photographs required some kind of analogous
representation which is absent in the digital photographs.
A digital photograph is substantially different from the conventional photographs as one of
the benefit digital photographs is that they can reproduced without any substantial loss in the
quality of the photograph which is not the case with the analog image. Since, the image is
stored numerically thus the reproduction of any such image would keep the quality of the
image intact in both the copy and the original. Also, even while making slight alterations in
the image the copies made previously will maintain their authenticity. Since the there exists
an ease to manipulate digital photographs the court has taken approach where witnesses are
sought to provide their opinion over the authenticity of the photographs. The witnesses testify
with respect to the fact that the photographs has not been tampered with, in this regard a lot
of things come into picture which need to be analyzed like the metadata with respect to the
picture etc.
A digital photograph requires a chain of custody form which either proves that the image is
original and unaltered or the details of the people who have held the image and the list of
alterations made time and again. There is another issue which is addressed by the judiciary in
admitting digital photographs as evidence is what should be considered to be “original” copy
of the image. Thus at times it has meant to mean the original image if the image in the camera
itself is placed before the without any alterations but even a slight manipulation disqualify it
to be original.
The photograph is really primary evidence, as much as the image formed on the retina of the
eye; but this argument is hardly sound. Although it is doubtless true that in most cases
photographs are merely secondary evidence, yet it is not always so. In cases where the
photographs themselves are the subject of the controversy, as a trial for the offense of selling
indecent and obscene photographs, it is clearly seen that the pictures themselves are
manifestly primary evidence, as is also the case where the original subject of the photograph
cannot for any reason be produced, then the photographs becomes primary evidence.
 Photograph As An Evidence Under Indian Evidence Act,1872

In the age of digitisation and increasing reliance on computerised records in judicial

proceedings, the Supreme Court has held that the requirement of a certificate to make an
electronic evidence admissible is not mandatory "wherever interest of justice so
justifies". Section 65B of Indian Evidence Act, which deals with admissibility of electronic
evidence in court proceedings, will have an impact on criminal trials, where an increasing
number of call details records, CCTV footage, mobile video recordings and CDs are being
relied upon. Interpreting section 65B(4) of the Evidence Act, a bench of Justices A K Goel
and U U Lalit said the provision should be applied only when such electronic evidence is
presented by a person who is in a position to produce such certificate. Section 65(B) of Indian
Evidence Act says that electronic records needs to be certified by a person occupying a
responsible official position for being admissible as evidence in any court proceedings. It said
that if a person is not in a position to produce such certificate the provision of 65B should not
be applied. The digital photographs can be evidence in Indian Court now a days .

After the amendments made to the Indian Evidence Act, 1872 in pursuance of the
Information Technology Act, 2000 (No. 21 of 2000) with effect from 17.10.2000, even
photographs drawn through a digital camera are admissible in evidence provided the
procedure prescribed therefor is complied with.

Newly inserted Sections 65-A and 65-B of the Indian Evidence Act, 1872 are relevant for the
purpose and as such, are reproduced here under:

 65A. Special provisions as to evidence relating to electronic record. The contents of

electronic records may be proved in accordance with the provisions of section 65B.

 65B. Admissibility of electronic records. (1) Notwithstanding anything contained in

this Act, any information contained in an electronic record which is printed on a
paper, stored, recorded or copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer output) shall be deemed to be also a
document, if the conditions mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in any proceedings,
without further proof or production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence would be admissible.

The conditions referred to in sub-section (1) in respect of a computer output shall be the
following, namely :

 the computer output containing the information was produced by the computer during
the period over which the computer was used regularly to store or process information
for the purposes of any activities regularly carried on over that period by the person
having lawful control over the use of the computer;
 during the said period, information of the kind contained in the electronic record or of
the kind from which the information so contained is derived was regularly fed into the
computer in the ordinary course of the said activities;
 throughout the material part of the said period, the computer was operating properly
or, if not, then in respect of any period in which it was not operating properly or was
 out of operation during that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and
 the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities."
So the recent amendments in The Evidence Act, the digitalised/electronic articles are very
much admissible in evidence and if the opposite side raises any objections with regard to its
authenticity then the court is also open for its proper verification by appropriate authority.

Admissibility Of Photograph As Evidence

Time and again photographs have been taken as evidence in the justice delivery system but
the question which needs to be addressed at this juncture is how photographs are made
admissible as evidence in the court. In order to answer these questions the provisions of
Indian Evidence Act, 1872 need to be studied. Section 62, section 63 and 64 deal with the
prove of contents of a document and they can be done either by primary or secondary
evidence. Section 62 of Indian Evidence Act, 1872 states that primary evidence means the
document itself is placed before the court. “Primary evidence means the documents itself
produced for the inspection of the Court.
So it can be said that if a photograph if taken and placed directly before the court then it is
meant to be primary evidence. But there can be instances where photographs can be said to
be secondary evidences also like if the copies are created from the negative of a photograph.
Section 63 deals with secondary evidence: “Secondary evidence means and includes :
1. Certified copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies.
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a documents given by some person who has himself seen
it.”
Thus photographs of the evidence in original are considered to be secondary evidence. Also
photographs can be admitted wither as substantive or demonstrative evidence. Photographs
are considered as documents under the evidence act [1]. Substantive evidence is when an
evidence proves a fact in issue while demonstrative evidence is when helps to understand the
difficult concepts in a case. Thus, if photographs are been taken as substantive evidence then
in that case the witness need to testify that the photograph portrays the scene fairly and
accurately. Thus, oral evidence in case of photographs is admissible if they are secondary in
nature.
 Determining The Authenticity Of Photographs
In today’s technology driven world the concept of digital photography has come into practice
thus nowadays digital photographs have replaced the traditional analogue photographs. Since
the entry of these new digital technology relating to photography a lot more aspects and
issues have arisen which need to be taken into account and at no instance be ignored. The
digital photographs along with its high quality has brought with it the high chances of
manipulation in photographs and this has forms the part of concern of the court.
These digital photographs since remain in the form of numbers they can be easily altered by
way of adding, removing or replacing some of the information. It has been seen and is a
common practice where camera man himself makes changes in the photographs and removes
features not required. Thus it can be seen that there can be accidental and intentional
manipulation of images. Accidental covers those instances like where the storage media of
the image is mishandled and as a result of which the image is altered while intentional
manipulation of images is when certain elements are removed or added in an image.
Thus keeping in view the above scenario court has issues in admitting digital photographs as
evidence and thus it requires testimony of the witnesses to prove the contents but it does not
resolve the issues as the testimony itself can be doubted. So, these photographs require a
thorough expert analysis. These photographs while being admitted has to go through all the
necessary requirements for the admissibility electronic evidence. With the introduction of
digital cameras, there needs to be a stronger requirement of establishment of authenticity to
make digital photographs admissible as evidence. Digital photographs pose new issues to the
traditional rules of evidence. Though it may appear to be the same as traditional photographs
but they are a totally different class of evidence.
The digital photographs can be copied any number of times and there is no way to actually
distinguish the original from the duplicate one. There may be advertent or inadvertent
alterations and it is very difficult to establish the authenticity and that there has been no
tampering with the original photograph. The standard of authentication depends on what
purpose the digital photograph is being admitted as evidence. It can be used as substantive
evidence or demonstrative evidence. Substantive evidences are used prove directly some facts
and demonstrative evidence are used to make something clear or understandable by visually
depicting something like X-rays or maps and charts.

Section 45A Of The Indian Evidence Act And Expert Opinion

In India, in S.45A of the Evidence Act, Expert’s opinion is sought when genuineness of an
electronic record is questioned. “Opinion of Examiner of Electronic Evidence. When in a
proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information
Technology Act, 2000 is a relevant fact.For the purposes of this section, an Examiner of
Electronic Evidence shall be an expert;” As per S. 22A of the evidence Act oral evidence as
to contents of an electronic records is admissible only if its genuinity is in question. The
digital photographs can be admitted as primary evidence itself if the digital camera is brought
before the court. If its genuinity is in question after it being admitted as primary evidence
under S. 62 of the Evidence act then expert opinion under S. 45 A of the evidence act can be
admissible. But if a digital photograph is admitted as a secondary evidence then as per the
case of Anvar P.V. v P.K. Basheer & Ors , If a secondary electronic record fulfills the
conditions of S. 65B, then expert opinion under S.45A can be sought. So when a printout of
the digital photograph is brought or the media in which it is recorded is sought to be admitted
as secondary evidence then expert opinion can be sought only when a certificate under S. 65
B is given.

Credibility Of A Photograph In The Court Of Law

Authentication problems can pose barriers. There was snow in the road when the car
accident in the case happened, but by the time the photos were taken it melted. A mechanical
contraption causing catastrophic bodily injury may have had a guard installed after the
incident. By the time a video could be taken, a modification changed the machine. In both
cases, an explanation by the witness may or may not make the representation admissible.
Admissibility, whether or not the evidence gets in to court. Remaining issues go to the
weight of the evidence. The ability of a photographer to skew reality remains alive and well
in a world with cameras on every street corner. Variables that distort the truth include lens
type, lighting, camera position, filters and exposure. These factors alter an image whether
done consciously or not. At its simplest, perceived distance between objects can change
depending on camera angle, lighting and aperture.

Evidentiary concerns raised by video editing and retouching of still photos loom even
larger. Accident reenactments and ‘day in the life’ videos are used frequently but the editing
process raises issues going back to authenticity. Techniques used by skilled photographers
including camera position, lighting and exposure can, even if on a subconscious level, make a
photo or video deceptive. When asked, courts review potentially misleading qualities to
avoid problems.

Photographs As Evidence In USA (Federal Laws)

The principal requirements to admit a photograph (digital or film-based) into evidence are
relevance and authentication. Unless the photograph is admitted by the stipulation of both
parties, the party attempting to admit the photograph into evidence must be prepared to
offer testimony that the photograph is an accurate representation of the scene. This usually
means someone must testify that the photograph accurately portrays the scene as viewed by
that witness.

Guidelines for Ensuring Your Digital Photographs Are Admissible :

 Develop a Standard Operating Procedure (SOP), Department Policy, or General Order

on the use of digital imaging. The SOP should include when digital imaging is used,
chain of custody, image security, image enhancement, and release and availability of
digital images. The SOP should not apply just to digital, but should also include film-
based and video applications as well.

 Most importantly, preserve the original digital image. This can be done a variety of
ways including saving the image file to a hard drive or recording the image file to a
CD. Some agencies elect to use image security software.

 Digital images should be preserved in their original file formats. The saving of a file
in some file formats subject the image to lossy compression. If lossy compression is
used critical image information may be lost and artifacts introduced as a result of the
compression process.

 If images are stored on a computer workstation or server, and several individuals

would have access to the image files, make the files read-only for all but your
evidence or photo lab staff. As an example, detectives could view any image files but
they would not have rights to delete or overwrite those files.

 If an image is to be analyzed or enhanced the new image files created should be saved
as new file names. The original file must not be replaced (overwritten) with a new
file.

Federal Rules Of Evidence In USA For Authentication

In order to make any documentary evidence admissible the Authentication has to be
established. In US the Federal Rules of Evidence, Rule 901 provides for the authentication of
an item of evidence sufficient requirements have to be met to support the claim that it is
genuine or authentic. The relevant parts of Rule 901 is “ Rule 901. Authenticating or
Identifying Evidence a. In General. To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a finding that
the item is what the proponent claims it is. b. Examples. The following are examples only —
not a complete list — of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to
be.
(2) Comparison by an Expert Witness or the Trier of Fact. A comparison with an
authenticated specimen by an expert witness or the trier of fact.
(3) Distinctive Characteristics and the Like. The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with all the
circumstances.
(4) Opinion About a Voice. An opinion identifying a person’s voice — whether heard
firsthand or through mechanical or electronic transmission or recording — based on hearing
the voice at any time under circumstances that connect it with the alleged speaker.

(9) Evidence About a Process or System. Evidence describing a process or system and
showing that it produces an accurate result.”

So when a digital photograph is admitted then opinion of a witness, or an expert is important

to make it admissible. Also as per Rule 901(b)(9) a process or system which produces a
particular result whether that process is accurate also can be proved by relevant evidence.So
when a digital photograph is printed or produced using a computer, the process has to be
established as authentic.

Case Laws
1. State Of Connecticut V. Alfred Swinton.

This case has given new dimensions to the admissibility and authentication of the digital
evidence. Though this judgment is binding on the state of Connecticut but can be immense to
other states while dealing with digital evidence. In the present case the defendant Alfred
Swinton was convicted for the murder of a 28 year old woman.

The dead body of the girl was discovered in a partially dressed state, some bite marks were
also found on her breasts. Thus, digital photographs were produced as evidence of the marks
on the body of the defendant in order to prove that those bite marks was of the defendant.
The photographs of the bite marks were cleared using an image-enhancing software called
Lucis. Then these images were compared with the bite-pattern of the defendant by super-
imposing over the photographs of the bite-marks using Adobe Photoshop.

Swinton appealed on the basis that the images were improperly admitted because of the use
of Lucis and Adobe Photoshop. In order to analyze Swinton’s claims the court followed a
sixfactor test which is illustrated below :

1. The computer equipment is accepted in the field as standard and competent and was in
good working order,
2. Qualified computer operators were employed,
3. Proper procedures were followed in connection with the input and output of information,
4. A reliable software program was utilized,
5. The equipment was programmed and operated correctly, and
6. The exhibit is properly identified as the output in question the court came up with the
principles for authentication standards for the computer-generated evidence and applied then
in two parts of evidence: the photographs enhanced through Lucis and Adobe Photoshop. The
Court defined Rule of Law and applied the rule on the two pieces of evidence .

Conclusion
Since the technology of digital photographs is comparatively new, rules of authentication and
admissibility are also evolving and judicial decisions are helping to set the standards
regarding the admissibility of Digital photographs as evidence. Digital photographs are
electronic records in electronic form so there needs to be proper amendments in existing laws
to accommodate the insertion of digital photographs in the ambit of evidences pertaining to
electronic form. In US as the case of State v. Swinton has been a landmark decision in
determining the authentication and admissibility principles of digital photographs, In India as
of now Anvar v. Basheer stands as the law and S. 65 B requirements have to be met for
admitting the digital photographs in court.