The Stumblng Tumblr

Stańczyk by Jan Matejko; source: http://upload.wikimedia.org/wikipedia/commons/e/e3/Stanczyk_Matejko.JPG
May 15
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the above image from here depicts the Korean actress, Song Hye Kyo

contrary to what was probably your first impression though, it isn’t a photograph of her; it was digitally rendered in its entirety (in other words, no Photoshopping took place of an actual photograph)
the Stumblng Tumblr was led to the image by a footnote in the opinion by Senior Circuit Judge Stahl in the case of US v Wilder, decided MAY 12 by the Court of Appeals for the 1st circuit (here (pdf) via this)
Wilder had been convicted of various offences regarding images of child pornography and the USCA unanimously dismissed his appeal against those convictions
Judge Stahl agreed with the outcome of the appeal, but issued a separate opinion because he was troubled by an earlier decision of the USCA which had laid down the rule to be followed in Wilder
for reasons which needn’t be gone into now, if the prosecution in the US seeks to convict someone of offences in relation to images of child pornography, it must prove as part of its case that the images were of a real child or of real children
how does it do that though? is it sufficient that it puts the images themselves into evidence and leaves it to the trier of fact to decide by inspection of them that it’s satisfied that the child or children depicted in them are real? alternatively, does it have to call expert evidence that the images show real, rather than virtual, children?
well, Judge Stahl, in a minority of one on this point, thinks that the prosecution should have to call expert evidence, because non-expert triers of fact aren’t competent themselves at the present day to make the real/virtual distinction when presented with such images; according to him (page 29):

Technological advances in recent years have been such that an untrained eye simply cannot easily distinguish a photograph of a real person from a virtual image by merely eyeballing the photographs in question.

for what it’s worth, the Stumblng Tumblr thinks that Judge Stahl’s got right on his side here
assuming that’s so, something curious is happening
when photographs first began to be offered in evidence in courts, in the 19th century, it was held that the party offering them had to call expert evidence to explain how a photograph actually reproduced something seen in the real world
then, as people began to become more familiar with photography, that requirement was dropped—everyone “knew” that photographs were a reproduction of things seen in the real world
now, the wheel has turned again; people no longer “know” whether a particular photograph is a reproduction of things seen in the real world and they need experts again to instruct them

——
  • the above image from here depicts the Korean actress, Song Hye Kyo
  • contrary to what was probably your first impression though, it isn’t a photograph of her; it was digitally rendered in its entirety (in other words, no Photoshopping took place of an actual photograph)
  • the Stumblng Tumblr was led to the image by a footnote in the opinion by Senior Circuit Judge Stahl in the case of US v Wilder, decided MAY 12 by the Court of Appeals for the 1st circuit (here (pdf) via this)
  • Wilder had been convicted of various offences regarding images of child pornography and the USCA unanimously dismissed his appeal against those convictions
  • Judge Stahl agreed with the outcome of the appeal, but issued a separate opinion because he was troubled by an earlier decision of the USCA which had laid down the rule to be followed in Wilder
  • for reasons which needn’t be gone into now, if the prosecution in the US seeks to convict someone of offences in relation to images of child pornography, it must prove as part of its case that the images were of a real child or of real children
  • how does it do that though? is it sufficient that it puts the images themselves into evidence and leaves it to the trier of fact to decide by inspection of them that it’s satisfied that the child or children depicted in them are real? alternatively, does it have to call expert evidence that the images show real, rather than virtual, children?
  • well, Judge Stahl, in a minority of one on this point, thinks that the prosecution should have to call expert evidence, because non-expert triers of fact aren’t competent themselves at the present day to make the real/virtual distinction when presented with such images; according to him (page 29):

Technological advances in recent years have been such that an untrained eye simply cannot easily distinguish a photograph of a real person from a virtual image by merely eyeballing the photographs in question.

  • for what it’s worth, the Stumblng Tumblr thinks that Judge Stahl’s got right on his side here
  • assuming that’s so, something curious is happening
  • when photographs first began to be offered in evidence in courts, in the 19th century, it was held that the party offering them had to call expert evidence to explain how a photograph actually reproduced something seen in the real world
  • then, as people began to become more familiar with photography, that requirement was dropped—everyone “knew” that photographs were a reproduction of things seen in the real world
  • now, the wheel has turned again; people no longer “know” whether a particular photograph is a reproduction of things seen in the real world and they need experts again to instruct them

——