In Swinton, the use of two different software packages where one image developed through the software was admissible, but another image developed using Photoshop was found not to be admissible. It boils down to the wrong witness was put on the stand to authenticate what had been done with the image. Essentially, the witness could not explain, because he did not know, what had been done with the image.
... In order to lay a proper foundation for computer generated evidence, there must be "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." "[r]eliability problems may arise through or in: (1) the underlying information itself; (2) entering the information into the computer; (3) the computer hardware; (4) the computer software (the programs or instructions that tell the computer what to do); (5) the execution of the instructions, which transforms the information in some way--for example, by calculating numbers, sorting names, or storing information and retrieving it later; (6) the output (the information as produced by the computer in [847 A.2d 943] a useful form, such as a printout of tax return information, a transcript of a recorded conversation, or an animated graphics simulation); (7) the security system that is used to control access to the computer; and (8) user errors, which may arise at any stage."
The defendant contends that the state did not present foundation testimony on the adequacy of these two programs because the computer enhanced and computer generated exhibits were introduced through experts with no more than an elementary familiarity with the programs. Therefore, the defendant argues, the admission of this evidence violated his constitutional right to confrontation.
The state responds that the exhibits were merely photographic or illustrative evidence, not scientific evidence, and therefore did not require the testimony of a witness who could explain the inner workings of the equipment that produced it in order to provide an adequate foundation.
We conclude that the trial court properly admitted into evidence the computer enhanced photographs, but improperly admitted the superimposed images created by Adobe Photoshop.
Computer Enhanced Photographs using Lucis: The state presented testimony that sufficiently established the reliability of the evidence and the processes that produced it. Although [the witness] admitted that the algorithm itself was programmed [847 A.2d 945] by someone who "knows a lot more about computers" than he did, our review of the record reveals that [the witness] had sufficient knowledge of the processes involved in the enhancement to lay a proper foundation.
Superimposed images using Adobe Photoshop: The Supreme Court concluded that the trial court improperly admitted the superimposed images because the witness the State used to bring them into evidence could not testify accurately as to the reliability of the evidence and the processes used to generate it. The witness had only watched his assistant create the overlays.
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