The Interdependence of Science and Law

Today’s topic comes as I prepare to present authentication training in northern California. The title comes from an old article by Assoc. US Supreme Court Justice Stephen Breyer.

A local attorney enquired a while ago as to efforts underway to mitigate the Beckley decision in California. Remember that Beckley (People v Beckley, et all (B212529 – Ca. 2nd Appellate District)) affirmed California’s evidence code in terms of authentication prior to the submission of evidence. The question sparked an interesting discussion. I got to thinking …

… should Beckley be mitigated? Certainly the technology exists to authenticate images independent from the subject of the photo or the photographer. That’s what Axon Detect (Amped Authenticate) is for. It’s wide availability means that there’s no reason not to authenticate images prior to admission. This is what I was writing about when back in October – see democratizing forensic science.

From the Beckley decision, “… unlike Doggett, supra, 83 Cal.App.2d at p. 410, no expert testified that the picture was not a ‘composite‘ or ‘faked‘ photograph. Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when Doggett and Bowley were decided. Recent experience shows that digital photographs can be changed to produce false images. (See e.g. U. S. v. Newsome (3d Cir. 2006) 439 F.3d 181, 183 [digital photographs used to make fake identification cards].) Indeed, with the advent of computer software programs such as Adobe Photoshop “it does not always take skill, experience, or even cognizance to alter a digital photo.” (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time (2009) 2009 J. L. Tech. & Pol‘y 175, 183.)”

The court essentially noted how easy it now is to produce false images. Photoshop went from a product to a verb that implies some nefarious intent, as in “did you Photoshop that image.”

Trying to address the issue, Justice Breyer wrote in 2000, “Judge Jack B. Weinstein of New York suggests that courts should sometimes “go beyond the experts proffered by the parties” and “appoint independent experts” as the Federal Rules of Evidence allow. Judge Gerald Rosen of Michigan appointed a University of Michigan Medical School professor to testify as an expert witness for the court, helping to determine the relevant facts in a case that challenged a Michigan law prohibiting partial-birth abortions. Judge Richard Stearns of Massachusetts, acting with the consent of the parties in a recent, highly technical genetic engineering patent case, appointed a Harvard Medical School professor to serve “as a sounding board for the court to think through the scientific significance of the evidence” and to “assist the court in determining the validity of any scientific evidence, hypothesis or theory on which the experts base their testimony.”

In 2000, Justice Breyer wanted to create a small panel of experts around specific scientific disciplines. It might have made sense then. It doesn’t make sense now. The science, technology, and tools have matured such that they’re available to the police, prosecutor, and privateer alike. With Axon Detect (Amped Authenticate), all of the latest science is at your fingertips in one easy to use interface.

If you’d like to know more about authentication and how our tools can help, contact us today.

The Axon Forensic Suite is powered by Amped Software technologies.

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