Tuesday, March 18, 2008
The Pictures Are All I Can Feel: Connecticut Case Reveals Authentication Rules For Computer Generated Evidence And Computer Enhanced Photographs
The Appellate Court of Connecticut's recent opinion in State v. Blake, 2008 WL 683658 (Conn.App. 2008), contains an interesting discussion of how the proponent of computer enhanced photographs and computer generated exhibits can authenticate them. In Blake, Jeff Blake was convicted of sexual assault in the first degree, sexual assault in the second degree, and risk of injury to a child in connection with alleged acts committed against a fourteen year-old girl on a couch. Two days after the alleged incident, the girl gave to the police the pair of white underpants and pink shorts that she had been wearing at the time of the alleged assault. Some time thereafter, the girl gave the police a cushion from the sofa where the alleged assault occurred and onto which the defendant had allegedly ejaculated.
At trial, the DNA evidence indicated that an epithelial rich fraction of the stain on the victim's underpants revealed that the DNA from the stain was a mixture of which the defendant was included and the victim could not be excluded as a minor contributor. The testing on the sperm rich fraction of the stain thereafter revealed a single source for the DNA, a profile consistent with the defendant. There was additional evidence that the DNA testing also revealed a single source consistent with the defendant's profile. The defendant's DNA profile was created through computers, lasers, and cameras.
The prosecution offered this DNA evidence through Nicholas Yang, a forensic scientist employed by the department of public safety. Yang testified as to his qualifications, including a bachelor's degree in biochemistry and a master's degree in forensic science. He was also working toward a Ph.D. in genetics at the time. Yang had completed one year of training and had been employed at the laboratory for six and one-half years and had analyzed thousands of DNA samples. After he was convicted, Blake appealed, claiming, inter alia, that the prosecution failed to properly authenticate the computer generated DNA profile evidence because it failed to lay a sufficient foundation that Yang had an adequate understanding of computer generated evidence.
The court noted that back in 1979, in American Oil Co. v. Valenti, 426 A.2d 305 (Conn. 1979) the Supreme Court of Connecticut indicated that computer generated evidence could be authenticated by "testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer." The court then noted that in 2004, relying upon Federal Rule of Evidence 901, the Supreme Court of Connecticut in State v. Swinton, 847 A.2d 921 (Conn. 2004), adopted the additional requirements for computer enhanced photographs and computer generated exhibits that "1) the computer equipment is accepted in the field as standard and competent and was in good working order, (2) qualified computer operators were employed, (3) proper procedures were followed in connection with the input and output of information, (4) a reliable software program was utilized, (5) the equipment was programmed and operated correctly, and (6) the exhibit is properly identified as the output in question."
The court then found then Yang's testimony satisfied all of these elements and affirmed Blake's convictions. I like this 6 factor approach, but it seems to me that Connecticut is forgetting one step in the analysis. Computer generated evidence constitutes an original under Federal Rule of Evidence 1001(3) and state counterparts, but computer enhanced photographs would constitute duplicates under Federal Rule of Evidence 1001(4). Thus, a computer enhanced photograph implicates the Best Evidence Rule and can only be admissible if it accurately reproduces the original and there is no genuine question raised as to the authenticity of the original. And yet, I see no discussion of these issues in the Connecticut cases.
For more discussion of this issue, you can look at my new article, "Even Better than the Real Thing."