Is that Pic of Your Abuse Real?

In most counties, courts set aside part of a day each week to process trials of claims for Protection from Abuse. These trials are time sensitive as the law requires they be tried within 10 days of filing. 23 Pa.C.S. 6107. Meanwhile the remedies under consideration include exclusion of a person from his/her home for up to three years and a finding of abuse is a substantial factor in future custody proceedings. It’s a high stakes affair for everyone involved and there are always concerns about the accuracy of the testimony and other evidence presented.

People walk into these proceedings with all kinds of evidence. Among the most common is their cellphone, equipped with photo and audio recording. It’s not the way evidence is supposed to be received in a judicial proceeding but most judges wince and permit one or both party’s to hand their phone “to the court” to display its contents. The phone is then returned to the owner.

We live in an age where artificial intelligence allows all of us to alter data in our possession or direct AI to make stuff for us. We all harbor motivations to look our best in judicial proceedings because lots rides on the outcome. Unfortunately, we now have the capacity to alter or compose evidence. People will do that when their residence or their children are at stake.

This weekend we were provided with a published photo of Senator Mitch McConnell and his spouse, Elaine Chou, with a current newspaper in hand. Instantly, a debate erupted over whether the photo was real, doctored or an artificial creation. The debate was largely political but we confine this discussion to just how we should look at demonstrative evidence in high stakes settings.

Here’s an eight minute video analyzing the McConnell photo. The presenter offers that he could find no evidence to support the photo was artificial. But, he walks listeners through the problems he sees in the details of the photo and circumstances. The point is not whether he is right or wrong in his analysis. Rather, he spends eight minutes just walking through the details of one photo. He had time to do that.

Forensic expert exposes ‘biggest red flags’ in McConnell’s proof of life photo – Alternet.org

In an abuse trial, that time is rarely found. One party hands up a phone and asks that it be played or displayed. The other party often has no prior opportunity to look at this proferred “evidence.” Cross examination is almost impossible in a world where the phone is 3×5 inches. Meanwhile, the evidence is often critical. Bruises, cuts, violent language or conduct. You never hit her but there’s a photo of your spouse with a bruised face. She said you did and the pic is her proof. If the court deems the photo credible you may be out of the house for three years and it certainly is not going to enhance your child custody goals.

The due process problems are endemic. Where abuse occurs, we need a prompt disposition. But how do we deal with the threat of doctored evidence corrupting the outcome? There is no easy answer. Lawyers know it is illegal and unethical to present false evidence. But, how are they to know? And most abuse trials involve people without attorneys or attorneys who have had no time to prepare.

There is no easy solution to this. Photos and videos rarely reveal that they have been doctored until carefully examined. But, where the court hears what seems a legitimate challenge to the authenticity of evidence, it should be empowered to admit the evidence provisionally and with some recourse to correct itself if there is a showing that the challenged evidence is corrupt. That can’t be allowed to drag indefinitely, and a court may choose to enter “interim” relief while considering a challenge. But, absent some protection, the corrupting party has a manufactured advantage.

Another possible solution is to require that any demonstrative evidence be “uploaded” to a judicial site with its metadata at least three business days before trial. That’s not enough time to accommodate forensic analysis but at least the parties are dealing with important evidence before rather than mid-way through a hearing. This is a technological hurdle as well, but litigants deserve to have some sense that courtroom evidence is available to all before the gavel drops.