Forensic study of authenticity of digital photographs

Nowadays, technology is very present in our lives, so that more and more, computer-based evidence is part of everyday life in the judicial field. One of the most common cases is the accreditation or challenge of facts through digital photographs, in which it is sought to determine the origin, authenticity and integrity of the same.

It is very common, to commit the temerity, to present a digital photograph printed on paper as evidence in a judicial proceeding. In this case, the evidence is rebuttable since digital images, given their nature, may be manipulated, and their mere printed presentation is not enough to prove their origin, authenticity and integrity.

As it is indicated in the Supreme Court Judgment 300/2015, May 19^th , 2015 the proof of facts by means of digital photography “… is approached with all caution by the courts of justice. The challenge of the same displaces the burden of proof on those who intend to take advantage of their probative suitability. In such a case, the practice of an expert evidence will be essential … “.

Frequent cases

The most frequent types of orders are:

• Decide on the authenticity of the photograph: Absence of manipulation.
• Geolocation: Identify where the photograph was taken.
• Temporality: Identify when the photograph was taken.

Some interesting judgements

• Judgment of the Supreme Court 300/2015, May 19^th , 2015 , in which it is determined in points 2 and 4 of the legal grounds, that:

“The conversations between … and …, incorporated into the case through “screenshots” obtained from the victim’s mobile phone, are not properly documents for cassational purposes. This is personal evidence that has been documented a posteriori for its incorporation in the case. And those do not unexpectedly acquire the character of a document to support a cassational purposes”.

“There is also a reaction to the unconditional evidentiary acceptance of the dialogue held between … and his friend …, which was incorporated into the case through screenshots of Tuenti’s account. The defense points out that … ‘the context in which they were developed and whether any phrase was eliminated is unknown‘“.

• Judgment of the Provincial Court of Madrid 1173/2020, Section 26, July 1^th ,2020, in which it is exposed in point 2 of the legal grounds, that:

“Denied by the investigated that the comments were his, there is no objective and verifiable data available to support the complainant’s statement and make it plausible, since the screenshots do not have that character since it has not been possible to access their original source, nor has there been any computer expert evidence to prove their authenticity and that they were sent by him…“

• Judgment of the Superior Court of Justice of Granada 251/2020, Civil and Criminal Chamber, Section 201, September 29^th , 2020, in which it is set out in point 3 of the legal grounds, that:

“This Appeal Chamber considers that in addition to the above, it is a “screenshot” provided by the defense, without any expert evidence that proves that it was received on the defendant’s mobile, or that it came from the injured party’s mobile, nor its content; neither was the accused’s mobile device brought before the Chamber so that the authenticity of what it is to prove with a simple piece of paper could be checked by the Lawyer of the Administration of Justice. “

• Judgment of the Provincial Court of Valencia 574/2012, Section 11, September 24^th , 2012, in which it is exposed in point 3 of the legal grounds, that:

“For which the photographs, as private documents, in the absence of other evidence, in this case the most indicated would be the expert evidence due to its nature (article 335 of the L.E.C.), are insufficient by themselves to be able to conclude in agreement with what is sustained by the plaintiff, since the images therein collected do not accredit that they correspond with the place specified in the lawsuit. “

Considerations

“The appealed ruling is essentially based on the ineffective and invalid expert evidence that has been provided as the only justification for the facts imputed in the letter of dismissal to the plaintiff, for several reasons explained by the Magistrate of Instance in her ruling. The first is because she understands that the expert presented by the company lacks an official degree in computer science, although at this point it is recognized that the expert is the person who provides computer assistance to the company as a freelancer, which implies at least a practical knowledge of what he is hired for. On the other hand, the informal nature of the expert evidence and the questioning of the chain of custody are argued. Special mention is also made of the breach of the guarantees of the plaintiff’s right to privacy at the time of carrying out the inspection and search of the computer equipment, declaring it proven that the plaintiff was not present. In short, the Magistrate of Instance, evaluating this evidence and the testimonies provided at the oral trial concludes that the defects in the practice of the expert evidence carried out by the company prevent granting probative value to this means of proof, and given that it is essential to prove the facts imputed to the plaintiff, declares the dismissal unjustified.”

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From FORENSICTECH we provide our clients with the security of having:

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• A computer expert capable of facing the ratification in oral proceedings in all jurisdictional orders.
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