Photography and probative value: from the strength of art to the weakness of proof
Back in Vevey, city of images and home of Penalex Avocats – Attorneys & specialists in criminal law, after a few days spent in Nancy, I’d like to thank AFSIN – Association Francophone des Spécialistes de l’Investigation Numérique and Loria again for inviting me to speak on OSINT-related legal issues at the Journées francophones de l’investigation numérique 2024.
During discussions with participants and speakers, I was also able to delve into the technical side of an issue that has been occupying me for some time now with the appearance of DeepFake , and which has taken on a new dimension since my visit to Alexey Chernikov’s exhibition at the unmissable Images Vevey photography biennial, which closes today:
- Does photography still represent reality?
The reason I’m so interested in this question is that I’ve always believed that photography truly captures reality, albeit with the necessarily subjective artistic eye and bias of its author, but more faithfully and objectively than other forms of artistic expression.
Right from the start, there seemed to be a strong consensus that photography was the perfect way to capture reality mechanically and accurately, unlike other graphic arts such as drawing or painting.
And for a long time, this postulate seemed indestructible, so much so that expressions such as “y a pas photo” (there’s no photo) easily found their way into everyday language to describe something obvious or beyond doubt. More seriously, but in the same vein, Roland Barthes used this powerful formula to evoke photography: “Every photograph is a certificate of presence” (La chambre claire: note sur la photographie, p. 135).
This is why, for us courtroom practitioners, a photograph, a “certificate of presence” of a real moment, undeniably documents what exists and thus constitutes “proof” of what has been; proof which in turn constitutes the basic ingredient, sufficient and necessary for the manifestation of judicial truth…
But now, in his exhibition “One Last Journey”, Alexey Chernikov presents us with a destabilizing work combining several artistic techniques, including instant photography simulated by artificial intelligence.
According to the explanatory note presenting this exhibition: ” One Last Journey confronts artificial intelligence and the instant photographic process through the telling of a fictional love story. Seeking to mimic the aesthetics of the Polaroid, Alexey Chernikov writes brief descriptions of a couple’s final journey to separation on Midjourney software to generate images. These snapshots are then reproduced on a traditional Polaroid using a new printing device developed by the same firm. Interested in the emotional potential of AI, the artist questions the reliability of the photographic medium. From one image to the next, the One each time, blurring the impression of reality. Hijacking the Polaroid as the ultimate proof of authenticity, the project invites us to reconsider the photographic snapshot in the light of AI. “(https://www.images.ch/artistes/alexey-chernikov/).
In essence, Alexey Chernikov has used AI to generate real “polaroids” with their typical grain and imperfections (some photos are obviously overexposed, underexposed, in other words, botched), based solely on narrative descriptions entered into the AI, so that the images produced appear truer than life.
The characters portrayed in “One Last Journey” are not real. Nor are their stories, actions or locations. The reality represented by these “polaroids” is fabricated. We see only fire. A fire that devours our innermost convictions.
There’s no denying it: from now on, photographs, however realistic they may be in form and content, may no longer represent reality, and thus lose their ability to “prove” what has existed.
Of course, they are no less beautiful, disturbing, moving or message-bearing. Their evocative and artistic power remains intact, as “One Last Journey ” strikingly reveals.
On the other hand, when it comes to the probative value of a photograph in legal proceedings, it is now certain that we will no longer be able to rely on our senses alone, as is often the case in our courts.
From this point of view, only technology will be able to reveal the authenticity of the image and the reality of its content. Recourse to digital investigation experts will become essential to establish to the satisfaction of law that the facts described by a photograph do indeed correspond to a past reality likely to become the judicial truth.
Rules for the validity or admissibility of digital evidence will gradually emerge, based on models and processes already tried and tested in the world of forensic science, such as the principles identified by the European Network of Forensic Science Institutes – ENFSI – for the authentication of digital images.
This is what I’m currently working on with my colleagues at Penalex.
Just think, the next time an image is taken to court, you’ll have to consider analyzing its content, integrity, source, context, processing, format, metadata, and so on…
For if art can exist independently of the reality of representation, justice cannot exist without indisputable proof of this reality.
LT
