My Two Cents: What Lessons Can Lawyers Learn from Samsung’s “Fake” Moon Photo!

Samsung got caught “faking” its moon photo!

Last month, Samsung got caught providing an altered photo of the moon it had used to highlight the power of its telescopic lens.  It turns out the original image was blurry, and Samsung used “a detail enhancing function by reducing blurs and noises” to create details of the moon.  Let me repeat that:  Samsung’s software “created” details on its photographs.  (It seems unclear if Samsung is doing this with the phone’s software or outside the phone). Given the abilities of our smartphones and other AI-enhancing software on the web, this should give pause to lawyers when gathering photo- and video- evidence.

Traditionally, photos and videos can be powerful tools for authenticating evidence or providing substitute evidence when the original is unavailable or if a moment in time needs to be captured. But even before revelations of Samsung's "moon photo," lawyers must be wary of any potential evidentiary issues.  For example, a photo may not accurately capture the reality of what occurred on that particular day due to lighting or other factors. Videos can also lead to perception issues if they are edited or distorted in any way. In order for photos and videos to be considered as immutable representations, they must accurately reflect facts as they existed at the relevant time in question - without distortion or alteration.  The enhancement of photos and videos by using artificial intelligence should remind attorneys not to take for granted that what they see is accurate.

Is your client’s smartphone altering their photos?

Remember, the “Best Evidence Rule” provides that the original document or other primary evidence when proving the content of a document in court should be used whenever possible. Following the Federal Rules of Evidence, FRE 1002requires that the original evidence, e.g., an original contract or photo, be produced for trial.  For a variety of legitimate purposes, that cannot always be accomplished. That is when FRE 1003 kicks in.  

FRE 1003 provides "... if no genuine issue exists as to authenticity and no other reason exists for requiring the original, a duplicate is admissible under the rule." If authenticity is in question, the evidence may need to be authenticated by a certified forensic examiner to ensure its accuracy. This means that all native files and relevant metadata must be provided to the court (expert) in order for them to make an informed decision on a material issue.  Any objection tactics could potentially challenge the fundamental requirements of the best evidence rule. If an image is altered or distorted in any way (by software enhancement), then it may not be admissible.  Using the wrong photo may tank your case. Therefore, it is crucial for attorneys to understand that videos and photos are not always reliable representations of facts within court cases. Attorneys need to keep this in mind and ensure that all evidence is thoroughly vetted before relying on it during trials or proceedings.

Remember to make sure you gather all of the data associated with your evidence.  This likely will include gathering the metadata and raw footage related to the photos and videos you plan on using. That may uncomfortably require you to take/borrow your client's phone to pull the necessary information.  It's important that you do your due diligence; otherwise, you may not get a successful photo finish 🏇 in your trial.

MTC