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Use of Adobe Photoshop In a ruling expected to be to computer technology what State v. Porter is to scientific evidence, the Connecticut Supreme Court last week decided what foundation is needed for computer-generated evidence to be presented at trial. As with Porter, the May 3 decision in State v. Alfred Swinton, which upheld Swinton's murder conviction, is expected to extend far beyond the case that spawned it.

In March 2001, Swinton was found guilty of the January 1991 murder of 28-year-old Terry Carla in Hartford. Carla's body was found in a snow bank, partially clothed and wrapped in a brown garbage bag. Several crescent shaped bruises, identified as bite marks, were found on her breasts. By March 1991, Swinton had become the prime suspect. During a search of his house, police found a black bra, identified as Carla's. Police also made a mold of Swinton's teeth to match to the bite marks. He was arrested, but a judge dismissed the case at a probable cause hearing. In 1998, Swinton was re-arrested, in large part because he had made a number of incriminating statements -- including one to a reporter during an interview to proclaim his innocence -- but also because new scientific methods gave further credence to investigators attempting to link Swinton's bite to the bite marks on the victim. At trial, two pieces of computerized evidence proved crucial to linking Swinton to the bite marks: computer-enhanced digital photographs of a bite mark on the victim's breast, and an overlay of the bite mark pictures and the tracings of the defendant's teeth. Two experts testified about the computer evidence. The first, Major Timothy Palmbach, of the Department of Public Safety's Division of Scientific Services, testified to the process of enhancing the pictures of the bite mark using so-called "LUCIS" software. The second, forensic odontologist Constantine Karazulas, claimed the bite marks were a match with Swinton's teeth. Karazulas, however, could not testify to the procedures used by the technician who created the overlay of the bite photos and the scanned image of the teeth mold. According to Christopher Godialis, the assistant state's attorney who argued the appeal, the technician who did that work did not testify because a pre-trial motion for a Porter hearing was dropped. More than 20 pages of the Supreme Court's 54-page decision, penned by Justice Joette Katz, focus on the two pieces of computerized evidence. The state claimed the computer technology was simply presenting the evidence to jurors, similar to using a PowerPoint demonstration. The defense argued the computer technology altered the original images and therefore the technology's reliability needed to be established. While the high court determined the photo enhancement was more than simply presenting the evidence, it declined to apply the tests used in other jurisdictions to determine the extent of that change. Many states distinguish between "computer animations" -- which simply present evidence using a computer -- and "computer simulations" -- which take pieces of evidence and analyze them to determine how they fit together. "Because in the present case, we cannot be sure to what extent the difference between presenting evidence and creating evidence was blurred, we let caution be our guide," Katz wrote. James B. Streeto, the assistant public defender representing Swinton on appeal, expressed disappointment in the ruling, but declined to comment, saying he and his client were still reviewing their appeal options. Since none of the state's witnesses laid the proper foundation for the "Adobe Photoshop" evidence, the Supreme Court ruled that some of the challenged evidence had not been properly admitted at trial. It didn't determine, however, whether such evidence in general is inadmissible. Nor did the court overturn the conviction, ruling it harmless error. The new standard set by the decision builds on the 25-year-old ruling in American Oil v. Valenti that adopted rules of federal procedure to establish foundation. Those rules require testimony to establish: * The computer utilized is accepted in the field as standard, competent and in good working order; * Qualified operators, proper procedures and reliable software programs was employed; * The equipment was programmed and operated correctly; and * The exhibit is properly identified as the output in question. "As in our decision in Porter, we stress that these factors represent an approach to the admissibility of computer generated evidence, and not a mechanical, clearly defined test with a finite list of factors to be considered," Katz wrote. "... Moreover we note that, because the domain of computer generated evidence expands on a nearly daily basis, by the time we could make a ruling regarding on particular program or application, that program would become obsolete and a new one would take its place," Katz noted. "We do not wish to enunciate a standard that is applicable today and useless tomorrow." Godialis said the high court's decision is pretty straightforward. "If somebody had to click on some buttons, using a program like Adobe Photoshop, to expose something in the photo ... you need someone to come in and explain that," he said. "Clearly the court's concern [is] that the person who was testifying didn't know all that much about Photoshop." Godialis said he still thinks the computerized evidence at Swinton's trial didn't rise to the level of "computer generated." But, he said, "If you subtract out the facts of this case from the opinion, it's a great opinion. Now that we know that, we can put on what we need to put on. We have the benchmark before there is a need to upset a conviction."