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.