The Digital Divide

The American legal system evolves far more slowly than the new technologies that present almost daily challenges to rules framed for a simpler time.

Domestic Violence Prosecutions and Digital Photographic Technology:  
                                       A Digital Divide?

The American legal system evolves far more slowly than the new technologies that present almost daily challenges to rules framed for a simpler time.  Recent, highly publicized examples range from defining a search (is the use of a thermal imaging device that “sees” through walls without requiring that an officer set foot on the subject property a search?[1])—to the nature of expert testimony,[2] the weight to be assigned to DNA evidence, and the admissibility of various kinds of computer files. As law enforcement personnel increasingly make use of new technologies, courts find themselves looking to the policies underlying existing rules of evidence, in an effort to apply the rules to these new investigative tools in a manner consistent with those policies.

A case in point is the growing use of digital photography in domestic battery prosecutions.  The greater clarity of digital images means that police have a more potent tool for prosecuting the batterer; however, if this new technology is to fulfill its promise, procedures must be developed to insure its admissibility, and proponents must address the policy concerns of those who fear that use of digital images to allow successful prosecution even when the victim does not want to go forward removes the last vestiges of agency from women who feel powerless almost by definition.[3]   


As recently as 1982, the United States Commission on Civil Rights reported an almost complete lack of prosecution of domestic batterers.[4] Domestic violence historically had been treated as a private matter, best dealt with outside the auspices of the criminal justice system,[5] and those attitudes persisted among law enforcement officers.  This situation has changed dramatically over the past twenty years, as activists and women’s rights groups have demanded enactment and increased enforcement of domestic violence laws. Across the country, police departments have instituted mandatory arrest policies, civil protection orders and “no-drop” prosecution policies intended to protect victims from future abuse. It is believed that these and similar “get tough” policies are necessary in order to break the all-too-familiar cycles of abuse and domestic violence.  Although evaluations of these programs have offered mixed results,[6] students of domestic violence remain convinced that the best way to curb the rate and severity of domestic violence episodes is to intervene early and decisively in the battering cycle.  If this premise is correct, those jurisdictions that intervene successfully (i.e., those that successfully prosecute lesser batteries and assaults) should be rewarded with a reduction in the incidence of future, more violent episodes. However, successful prosecution of initial or relatively minor episodes of abuse—especially prosecutions of misdemeanor batteries—face three formidable barriers: (1) the injuries involved frequently are, and can be portrayed as, minimal;[7] (2) minor altercations, especially when little or no hard evidence is available, can quickly disintegrate into problematic “he said/she said” conflicts; and (3) victims may refuse to press charges or otherwise co-operate. (Indeed, it is common for victims and batterers to reconcile even before the case reaches trial.)[8]

Obviously, improving the quality and quantity of non-testimonial evidence available to the prosecutor and ultimately to the court would go far toward improving conviction rates. Digital photography is one way to accomplish this. Digital images can record even slight injuries—those that are often blurred or indistinct on instant film, which has been by far the most common form of photographic evidence.[9] Another benefit of digital cameras is instant feedback; the officer can see immediately if the image captured reflects the reality she is seeing, and can adjust lighting, angle, etc. to insure the most accurate representation of the injuries.  

New technologies often are costlier than those they supplant, and those costs  must be weighed against increased effectiveness. The incremental cost of a digital photograph is approximately one dollar per six-picture sheet for printing, plus an extra ten cents per picture for batteries.[10]  If the use of digital technology saves the cost of even one trial—a cost estimated at One Thousand Dollars[11]–that savings alone would cover the cost of the camera, initial training, and  incremental photographic costs.  Assuming greater efficacy of digital photography, defined as a statistically significant increase in convictions, an investment in digital cameras for police photographers should pay a dividend in court. Until recently, however, there was little empirical study to confirm or rebut that thesis.     

                   Digital Photographic Evidence and Domestic Violence Adjudication         

In the spring of 1998, the Institute for Forensic Imaging (IFI) and the Marion and Hamilton county (Indiana) Prosecutors’ offices launched a project to equip patrol officers with digital cameras for use in the investigation of domestic violence incidents. This change occurred for two reasons: prosecutors in those offices had determined that digital cameras were probably the most cost-effective and easily deployed technology for the production of evidence to be used in court; and both offices had adopted “no drop” policies for all misdemeanor battery cases, even those where the victim declined to co-operate. At the same time as these offices moved to digital photography, and with the full cooperation of both prosecutors, researchers began a study to assess the impact, if any, of digital photographic evidence on case outcomes and conviction rates. The study was designed to answer one major research question: does photographic evidence influence the adjudication of domestic battery cases?

The study was conducted between March 1998 and February 1999. Details about methodology and study design are contained in Exhibit A.  The study concluded that digital photography used by the officers first responding to a domestic violence call can double the likelihood of conviction—mostly through plea bargains—even in cases where the victim refused to testify.[12] “Cases documented with digital photographs were more than twice as likely to result in a guilty plea, compared with cases lacking photo documentation. Those convicted were ordered to serve time in custody three times as often as those involved in cases lacking photo identification.”[13] [CRYSTAL—THIS COMPARISON IS BETWEEN DIGITAL PHOTOS AND NO PHOTOS AT ALL—WAS THERE ANY STUDY OF THE DIFFERENCE BETWEEN ORDINARY INSTANT CAMERAS AND DIGITAL?] Police and prosecutors who had previously used instant cameras remarked on the superior clarity and quality of the digital images. As Sonia Leerkamp, the Hamilton County Prosecutor, noted “Injuries such as light red marks or bruising that were not visible at all with instant cameras were clearly evident in the digital images. Digital photography was so graphic that it often precipitated a plea in cases where there was no prior evidence, so it saved the victim from having to go to trial and the county the cost of the trial.”[14]

The New York Times made a similar point in an article entitled “Digital Photos Give Police a New Edge in Abuse Cases.”[15] Reporting upon the move to digital photography by the New York Police Department, the article noted that

“Photographs of bruises or broken furniture, if taken at all,

are usually shot with Polaroid cameras. Those snapshots, which

are often blurry and fail to make the injuries visible, can take days

or even weeks to reach the Courts. But with digital photography, evidence that has been practically impossible to gather quickly or

gather at all—clear and detailed images of injuries like swollen eyes, bruised cheeks and handprints around the neck—can be transmitted by computer to prosecutors and judges at the earliest stages of a case.”

                   Digital Photography and the Rules of Evidence

Despite police and public enthusiasm for digital photography, those photographs must be admitted into evidence under rules that were fashioned for a very different state of technology.  Nevertheless, the concerns governing admissibility are equally relevant to technologies old and new: any photographic evidence must be shown to be relevant,[16] and must be properly authenticated.[17] (In fact, authentication is becoming equally important when the image in question has been conventionally produced; thanks to current technologies, many of the potential dangers posed by digital images—tampering with or manipulating the photograph—are also possible with images on film. “Conventional photographs may be ‘scanned’ into digital form, manipulated or altered in some way, and reprinted on paper.”[18])  Nevertheless, fraud by conventional photograph remains relatively difficult, and can be detected more readily. Manipulation of digital images is far simpler; an off-the-shelf software package, a home computer, and a bit of practice and nearly anyone can produce an alteration that is difficult to detect.

A photograph will be deemed relevant if it tends to prove or disprove a material element of the charge. If it does, judges are likely to admit it unless it presents a substantial potential for confusion or prejudice.[19] A determination of relevance is not affected by the nature of the photograph—whether it is analog or digital.

Authentication of a photograph simply means that there must be independent evidence that the image is a true and correct representation of what it purports to show. The photographer may testify to the accuracy of the picture, or any qualified witness may do so. If the accuracy of the photograph is challenged, the court may require establishment of a chain of custody.

Where application of existing rules becomes problematic is with the requirement that a recording or a photograph be an original. Rule 1001 of the Federal Rules of Evidence defines an original as

“An ‘original’ of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An ‘original’ of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’”

Under this language, a digital photograph should be admissible as an original; however, as commentators have noted, there is a foreseeable risk that foundation requirements applicable to conventional photographs will not be sufficient for digital ones.

“The honest testimony of an authenticating witness that an image is a fair and accurate portrayal of a scene may no longer be an adequate safeguard if legal rights or liabilities turn on subtle but material manipulation of individual elements within a scene. The resolution of the witness’ memory may not be that fine, even if the witness is the photographer….If the photograph was captured by means of a digital camera, there need be no trace that an earlier version of the image ever existed.”[20]

While acknowledging the concerns, practitioners have fashioned standard operating procedures to accommodate them, and to ensure admissibility.  Kammen and Blitzer[21] identify five procedures that are necessary to ensure admissibility of a digital photograph:

  • The image must be recorded in an unalterable, archival form soon after the records are created. A writable CD is their medium of choice, since once created they cannot be erased. Some CDs have engraved serial numbers as well, which eliminates the possibility that an altered disc might be substituted for the original one.
  • The image should contain information about its creation. Some digital cameras generate an unique data file each time an image is made. When the image is saved, so is the data identifying it. Once the image and its accompanying data have been transferred to a writable CD, an archival copy has been created.
  • The agency must control custody at all times. Just as with other chain-of-custody requirements, departments need to limit access to the evidence, and need to be able to identify those who had access.
  • Personnel who prepare the exhibits for court should be trained in digital image processing. They need to understand which images might require a special notation to show that changes made—such as contrast, or enlargement—are not prejudicial.
  • The agency will need to establish rigorous procedures for entering work-in-progress into proper file systems. These systems—Kammen and Blitzer refer to them as “audit trails”—should document precisely how and when images were captured, processed and stored.

Police and prosecutors who create and maintain systems of the sort Kammen and Blitzer describe have few problems getting their photographs admitted, despite the more theoretical concerns of legal scholars and evidence professors, and the widening use of the technology is reflected in higher conviction rates.   While the Indiana study is the only empirical investigation of its kind, other evidence suggesting the efficacy of digital photography is widespread. An article from the New York Times noted

“Queens began using digital photography in the spring of 2001, and convictions—the easiest statistic to measure—rose swiftly, to 60.9 percent from 51.7 percent during the first six months the photographs were used.” [22]

                                      What About the Victim?

With proper care, new technology—here, digital imaging—can work within pre-existing rules of evidence. But technology and legal expertise cannot resolve the policy differences among those who advocate for battered women. Here, digital photography and “no drop” policies run headlong into an argument about empowering/disempowering women.

Advocates of victimless prosecution say women’s reluctance to proceed is primarily due to fear of violent retaliation from the batterer and a mistrust of the criminal justice system (cite needed here). These same advocates point out that many victims of domestic violence are put under pressure by their communities and extended families, and are isolated from support networks which might support an alternative course of action. Consequently, victims of domestic violence rarely testify against their violent partners despite increased pro-arrest policies and stiffer penalties for batterers (need citation).

Those who oppose victimless prosecutions suggest that policymakers are asking the wrong questions. Rather than debating whether arrests should be routine in these situations, the proper policy question is  “What is an effective criminal justice system response  to domestic violence?”  They argue that in some instances, prosecution will make matters worse for the victim, and claim that it is not clear how women will be protected against further victimization in any particular case, let alone in cases where the prosecutor proceeds against the victim’s wishes (Hoyle and Sanders, 2000).

Victim Empowerment Position

Advocates of victim choice—that is, allowing the victim to make the determination whether and how to proceed—argue that individual victims should be allowed to decide what may be best for them. Victims should be empowered to make that determination without considering the impact of non-prosecution on perpetrators or other victims of domestic violence (Friedman and Shulman 1990).  Such advocates maintain that all victims want the violence to end, but not at all costs; most women realize that other means of resolution may enable them to stop the cycle of violence. A separation from violent partners is what most actually want.  Once a woman has made the decision to leave, it may no longer be necessary to pursue prosecution (cite needed here).

Of course, what is best for—or preferred by—an individual victim may not be best for others, or for society in general. Future victims must also be considered. Domestic violence perpetrators typically move from one woman to the next—engaging in violence against each new partner (cite needed here).  The only way to protect future victims is if the batterer’s behavior is confronted early and dealt with head on (Garcia, forthcoming). Victim choice advocates agree that prosecution secures a confrontation with the batterer, but they contend that it rarely achieves more. Since the key to ending violence is to end abusive relationships (which many abused women find difficult to do because of their own insecurities and the controlling behaviors of their partners), efforts are needed to counterbalance the isolation experienced by these women and to repair their sense of confidence and self-worth.  Abused women need to be empowered to make those choices which are most likely to end the violence.  To this end, victim choice advocates support and encourage women to conduct “lethality assessments” (which may or may not lead them to aid prosecutors) to help them understand the seriousness of the risk factors that may be involved. (Tessier, 2002)

Supporters of pro-arrest and mandatory prosecution policies respond by citing evidence that arrests reduce violence (Garcia, forthcoming). There is consensus among these supporters that arrest is almost always in the best interest of the victim. Regardless of the stated preferences of the victims, proponents of this position contend that the crime must be addressed, an arrest made, prosecution pursued, and when appropriate, punishment imposed—all of which is highly likely to reduce subsequent aggression.  In contrast, victim choice advocates argue that arrest, whether followed by prosecution or not, does not in itself achieve that reduction. Available research suggests that arrest can help to reduce violence of the arrestee, but only when it is part of a package of wider social interventions, such as anger management, substance abuse treatment, and other structural causes of familial violence.(Stark, 1996, Stanko 1997)

Victim empowerment advocates insist that it is important that those in positions of authority understand the reasons for victim reluctance to prosecute, not for the purpose of enhancing chances of successful prosecutions, but rather, in order to enable women to best understand what course of action is truly in their best interests, to encourage them to act accordingly, and to support them in the choices once they have been made. (Stewart, 1999)

State Intervention

Many battered women’s advocates want to hold the police and prosecutors accountable as agents of the state for carrying out government’s mandate to protect its citizens. Feminists are quick to point out that police often exercise their powers in ways that reinforce the disadvantages already experienced by women, and by members of poor and minority communities. [cite needed here].  Most will agree that the efforts of advocates for battered women have forced the criminal justice system to take family violence seriously, with the result that arrests and prosecutions have increased dramatically. The public and political desire for crime control has also had an impact on domestic violence law reform. However, feminists maintain that the crime control policies that have been adopted have resulted in greater state control over women, particularly poor women, rather than in their empowerment.  Policies that do not allow victims to choose whether to arrest and prosecute their abusers do not respect the autonomy of victimized women, and indeed, add to the already overwhelming sense of powerlessness such women experience. (Coker, 2001). It is precisely that feeling of powerlessness that leads women into subsequent abusive relationships.

These are arguments that digital photography, unfortunately, cannot solve.


Friedman, L. and Shulman, M. (1990), Domestic Violence: The Criminal Justice Response’, in A. Lurigio. W. Skogan and R. Davis, eds., Victims of Crime: Problems, Policies and Programs. Newbury ark, CA: Sa.

Tessier, M. (2002) ,Women’s Enews, Battered Women’s Advocate Murdered by Companion.

Coker, D. (2001), Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review
Stewart, A.  (1999), Domestic Violence: Deterring  Perpetrator…………….rest of cite needed

Hoyle, C. and Sanders, A. (2000), Police Response To Domestic Violence: From Victim Choice to Victim Empowerment?

[1] Last year’s supreme court case. Court held that it was, indeed, a search.

[2] Daubert v. Merrell Dow Pharmaceuticals, US (1993)

[3] NYTimes article

[4] U.S. Commission of Civil Rights (1982)

[5] Ellis 1994; Binder & Meeker1992

[6] See Garcia, Crystal “Digital Photographic Evidence and the Adjudication of Domestic Violence Cases” and studies cited therein. See also, Maxwell, Garner and Fagan, 2001. Maxwell, et al conducted a meta-analysis on the raw data from replication studies and concluded that arresting batterers did reduce subsequent aggression.
[7] Blitzer, Garcia & Leitch, 2000

[8] Schmidt & Steury, 1989

[9] Blitzer & Jacobia, 1997

[10] Blitzer, Herb and Crystal Garcia and Any Leitch. “A Picture Says It All.” Law Enforcement Technology, June 2000.

[11] Ibid, page 54.

[12] Garcia, Crystal. Cite study.

[13] Blitzer, Garcia & Leitch, “A Picture Says it All” Law Enforcement Technology, June 2000.

[14] Ibid, pg 54.

[15] NYT Dec. 1, 2002.

[16] Federal Rules of Evidence, 401, 402, 403

[17] Christine A. Guilshan, Note, A Picture is Worth a Thousand Lies: Electronic Imaging and the Future of the Admissibility of Photographs Into Evidence, 18 Rutgers Comp. & Tech. L.J. 365  (1992)
[18] “You Won’t Believe Your Eyes: Digital Photography as Legal Evidence”  at page 6

[19] Id at 7


[21] Richard Kammen & Herbert Blitzer, “Ensure Admissibility of Digital Images” The Indiana Lawyer, November 1-14, 1993. Vol.6 #13.
[22] NYT article, p5