The challenge of digital imagery as admissible evidence

Issue August 2010 By Anthony Abeln, Esq.

With the host of technological resources at the fingertips of trial attorneys who can now inexpensively and efficiently guide juries through dramatic demonstrative aids - such as edited video, digitally-generated animation, and enhanced imagery - the question of admissibility of technologically generated chalks and demonstrative evidence, and the weight such images are given by judges and juries, remains paramount.

Historically, trial counsel in medical malpractice and personal injury actions that center on missed radiological findings arrive at trial with sleeves of original radiology films and a light-box - the document and the tool of the radiologist. These films, however, have largely gone the way of the Photostat - films are now nearly exclusively viewed, produced and disseminated in a digital format through a computer-aided viewer with computer-aided tools. In such cases, even slight changes in contrast and brightness can turn innocuous findings into dramatic (if possibly illusory) evidence of disease. As such, the admissibility of such images face substantial new challenges. Not only must attorneys confront issues surrounding how these images are produced, but also how they were seen by a radiologist at the time of the alleged negligence, and under what conditions they were produced or altered as demonstrative aids at trial. These become central foundational questions.

Computer simulations, when provided in advance of trial, are admissible after the proper foundation is laid, as described in Commercial Union v. Boston Edison Co., 412 Mass. 545, 549 (1992) (requiring advance production of computer-generated evidence as part of evidentiary foundation at trial, and demanding showings of computer functionality, complete and accurate input, and community acceptance before admission). While no parallel rule exists for digital imagery, the notes to the 2010 Mass. Guide to Evidence sec. 1002, state that the "admission of digital imagery is within the discretion of the trial judge, provided that the evidence is accurate, similar enough to circumstances at the time in dispute to be relevant and helpful to the jury in its deliberations, and its probative value outweighs any prejudice to the other party." Notably, the guide cites to the recent Supreme Judicial Court decision in Renzi v. Paredes, 452 Mass. 38 (2008), as an example of the execution of this principle. Citing Renzi, the guide cautions that "'[c]oncerns regarding the completeness or production of an image go to its weight and not its admissibility." However, in the absence of a clear path to admissibility; and particularly in light of the Renzi decision, "admissibility" and "weight" can become a morass and nearly indistinguishable for the attorneys and courts alike.

In Renzi, plaintiff alleged that the defendant had failed to properly interpret hard copies of mammography "films," which led to plaintiff's delayed diagnosis of breast cancer and ultimate death. Staff of the plaintiff's expert had digitally photographed the key mammography films at issue. Plaintiff's counsel published these copies to the jury in a jury notebook and projected them on-screen.  These digital images were, the expert testified, both the "substantial equivalent" of the mammograms and "substantially different" - in that the digital image showed more "white" than the originals (which could be a potential indicator of abnormal tissue). In short, a hard copy of the different-yet-equivalent digital photographs of the key mammography film were admitted into evidence over the objection of the defendant, who alleged that the difference in the film was an enhancement that misrepresented the nature of the film. The trial court found that, despite differences between the original films and the enhanced digital images, it was "obvious" that the digital images were being used as "demonstrative aide" (sic) for the jury.

Nevertheless, the trial court further instructed the jury as follows:

"The original mammogram films are in evidence. You will have them with you in your jury room during deliberations. In addition to the original mammograms, photographs have been placed in evidence and you were shown several screen projections of those mammograms. The photographs and screen projections are not a substitute for the originals, but were allowed [in] evidence to assist you in viewing and comparing the mammograms in question. The Court ruled that they were admissible as substantial likenesses of the originals. You will have the originals and the view boxes with you in the jury room. Although this Court ruled they were admissible, it is up to you to determine their usefulness to you and what weight, if any, you attribute to them." (emphasis added)

In upholding the trial court's decision to admit the digital reproductions of the mammograms and instructions to the jury, the SJC cautioned that the trial court's instruction - that the images were "substantial likenesses" of the original mammograms - did not improperly comment on the weight of the evidence; rather, it was a product of the defense counsel's attempt to challenge the validity of the images themselves, ruling that it was "a statement of the status of the evidence made necessary by the defendants' innuendos of trickery on the part of the plaintiff."

The implications of Renzi, however, may blur the distinction between admissibility and weight of digital imagery. Parties seeking to challenge either the admissibility or the weight of digitally altered images run the risk of engendering a limiting instruction such as that upheld in Renzi - one that appears to, on its face, inexorably intertwine the language of admissibility - whether or not a judge is content that an image is a substantial likeness of another sufficient to lay the foundation for its admissibility - with issues of weight potentially neutralizing an effective cross-examination that uncovers alterations during the process of its generation. The New Jersey Appeals Court, in Rodd v. Raritan Radiologic Associates, 860 A.D. 1003, 1011 (2004) recognized the danger of unfettered associations that juries might make when computer-enhanced digital images made of radiology films are admitted with the originals, noting that, even with a light box view of the originals in hand for a jury, "the very real danger persisted that the jurors could not erase from their minds" the altered digital imagery. In Rodd, moreover, the court held that the use of digital mammogram images even for mere demonstrative purposes required advance notice, a showing that the images' probative value outweighed its prejudicial effect, and testimony by a person with knowledge of computer processes who can be examined and cross-examined.

So how does a practitioner address the vagaries of admission or opposition?  If seeking to admit digitally enhanced imagery as demonstrative aide, counsel should be prepared to support the foundation through broad-based "process" testimony, such as that described in Commercial Union, and be prepared to explain why, and how, a digital image differs from its original. In opposing an attempt to admit such an image, a party should strongly challenge the "process" of its development, its potential prejudicial effect, and perhaps prepare its own expert to opine as to the methods used to alter the original imagery - with the caveat that the court, through an admissibility determination, may of its own initiative counterbalance challenges to process before the jury.

Anthony Abeln, Esq. is an associate in the Boston office of Morrison Mahoney LLP.  His practice areas include professional liability defense, hospital and medical law, product liability, pharmaceutical litgation and commercial litigation. He can be reached at (617) 737-8885.