Metadata and Makeup

The challenges of evidence are back in the news recently in yet another collision of the strictures of evidence and the potentially very malleable digital world in which we find ourselves living. It is a world in which we have learned to doubt our own eyes as we see things like Tom Hanks seemingly acting in a film with John Kennedy, who had been dead for about thirty years at that point (Forrest Gump, Paramount 1994).

For this reason, we need to be able to examine photographs, and other digital representations, and make determinations about their authenticity and reliability. Part of that examination will be about the "metadata" that is imbedded in and thus travels with such documents. For more on metadata, see Internet, Evidence, and Admissibility (December 2012). The fact is that almost anyone can try to manipulate the pixels in a digital photograph to add, enhance, detract, or obfuscate. The world of pictures and evidence has changed much in recent years. They used to be "worth a thousand words," and now may require hours of testimony, or as such perhaps that same "thousand words."

I have written recently about "a rather testy defamation action" that is currently in the news. The Stress of Testimony (May 2022). One of the issues that arose in that case involves some photographs submitted as evidence of bruising and injury by one of the parties. That led to the retention of expert witnesses (see posts above regarding Daubert, and the constraints on expert opinion). The experts addressed the photographs, the metadata, and rendered opinions.

The "metadata expert" in this instances "testified that he analyzed several . . . photos." He apparently did not testify that they have been manipulated or changed. However, he concluded that the evidence support the possibility that they have been, and therefore "claimed that he had no way of authenticating them." Newsweek reported the expert's testimony and conclusions. Of the most import, he testified that the photos include evidence that they have been, in some way, in contact with "an editing program."

The digital, metadata, foundation of the photographs includes evidence of software from a smartphone, which supports that the photos were created by a camera in such a device. However, the DNA of those photos (the metadata) is not exclusively from such a device. Woven into that metadata to some extent and degree, the experts believes there is also the DNA or metadata from "an editing program." That, however, does not necessarily mean that the photographs have been altered. The testimony is thus not conclusive, but is suggestive of some doubt and questions.

Thus, the conclusion (opinion, see Daubert) is not that the photos have been altered or are not genuine. It is specifically that there is "no way for any forensic expert to validate these photos." The expert then proceeded to cast doubt on the authenticity of at least "several photographs" specifically. The expert is not alone. Unfortunately, the Twittersphere also includes a fair number of self-anointed experts who took to the question of the picture's authenticity. That itself illustrates the challenges an adjudicator might face in enforcing the evidence code (jurors have to ignore the news, the social media, and focus upon the evidence that is admitted in any trial).

The manipulation of photography can only come as news if one has been in a coma for the last few decades. Accusations about photo manipulation have become commonplace on social media and beyond. Cosmopolitan published a montage of accusations involving well-known names like Kardashian, Rhianna, Gomez, Ramsay, Carey (no, not the comedian), and more. The article refers to discovered alleged manipulations as "photoshop fails," and intimates "celebrities are sometimes still inclined to reach for the Photoshop to give themselves a little Face Tune."

And, photographs themselves may be but part of the challenge of those "thousand words." One of the parties in that case excited the internet during the trial with references to the use of makeup. The party volunteered having a "theater makeup kit" that was referred to at one point as a "bruise kit," which elicited much conjecture in social media about whether the original smartphone pictures (before any non-smartphone DNA may have been introduced) were of genuine injury or of make-up. The same makeup was later referred to as "a color correction kit."

What is true, real, and reliable? That is for the judge to decide in either admitting or excluding evidence. The judge is challenged with the strictures of the evidence code, the authenticity of the photos, and their reliability. This may include questions of "authenticity" per se from an evidentiary standpoint as well as challenges of hearsay, see Better Understanding the Hearsay Rule (March 2016).

Having determined that the photos are otherwise worthy of admission into evidence, the adjudicator may nonetheless face questions of whether they are too prejudicial. See Limine and Workers' Compensation (January 2019). In that analysis, even the most authentic and genuine document or picture might nonetheless be excluded on the basis that they are more prejudicial than they are probative. In either event, it is the judge deciding what the jury will or will not see in deciding the case. 

Finally, the evidentiary process leads to the "weighing" of evidence. See Reweighing Evidence and Appellate Review (November 2017). That is, a consideration of the testimony and documents that the judge has allowed into evidence. This includes consideration of the manner in which such evidence contradicts or is consistent with other evidence. This includes consideration of the credibility of the witnesses, writ large. This includes intuition, introspection, and patience. And, as illustrated in this instance, it may include the testimony of an expert or two on topics that help with the questions of admitting the evidence, but perhaps also on assessing the persuasiveness of the evidence itself.

It is a nasty trial ongoing in this defamation matter. There is a great deal of media (social and traditional) coverage in this particular instance. But, there is the benefit to us all of providing concrete examples of the challenges of evidence that daily confront those who litigate; these challenges can perplex and confound lawyers who strive to both present admissible evidence and convince the finder of fact that evidence supports that her/his client should prevail in a particular trial. It is often a challenging puzzle, and a task for which lawyers must both prepare and practice.

What is to be believed? This process illustrates for us that the judge must make many decisions in that regard, deciding what will be admitted as evidence. After that threshold, the "finder of fact" (a jury in this instance, but in workers' compensation that same judge) must then decide how persuasive various pieces of evidence might be, deciding credibility, and drawing conclusions. In a world of metadata and photoshop and sophisticated make up, we perhaps will all struggle with what we see. As Chico Marx asked long ago, "who you gonna believe, me or your own eyes?" Duck Soup (Paramount 1933).

By Judge David Langham

Curtesy of Florida Workers' Comp