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Are Images Legal?

©1994,2004,2007 by Charles A. Plesums, Austin, Texas, USA

Legality is a key question for any organization that is considering storage of document images in an electronic form. The answer is generally "yes, images are sufficient records and legal as evidence." This document is not a formal legal opinion, but summarizes the answers you should expect to get from lawyers who are experts in the rules of evidence, not only in the United States, but in many parts of the world.

The question of legality has two distinct parts - the admissibility in court, and the trustworthiness (or credibility, believability, truthfulness) once the evidence has been admitted. Most of the discussion surrounds admissibility: "Am I allowed to bring this image to court and present it as evidence?" The second part is convincing the court that the evidence is trustworthy - for example, that the copy of the letter truly represents information that was sent from one party to another. The issue of trust is the same, whether the document is on paper, microfilm, or image.


Special Laws and Rules of Evidence

Some organizations have said they will start to use images when they have explicitly been declared legal. Some jurisdictions have passed laws to help, but early laws have sometimes not been very useful. For example, one jurisdiction made images legal as long as they were maintained following standards established by the National Bureau of Standards. There are two problems: First, the National Bureau of Standards (NBS) ceased to exist as such several years before the law was passed. Second, neither the NBS nor the successor National Institute of Science and Technology (NIST)establishes standards for imaging.

The Association for Information and Image Management (AIIM), which is the ANSI accredited image and microfilm "Standards Developing Organization" for the United States, had a blue ribbon task force on "Legal Admissibility of Records..." AIIM has published technical reports from that task force that may be helpful to business or government. The task force has also proposed that each state pass uniform rules of evidence that addresses integrity of the records, but explicitly ignores the media or technology on which they are stored. These have been implemented in many jurisdictions, and may provide comfort, but are not necessary.

Precedents and case law

Some organizations have said they will only use images when a legal precedent has confirmed their legality. This may take a long time. To establish a precedent, a case must first be lost. It must then be appealed to a "court of record" based on this point of law - the admissibility of an image as evidence. The appeal must be allowed, the case retried, and the earlier decision must be overturned. A precedent is then established, as desired, but only in that jurisdiction. Other jurisdictions may observe the precedent, but are not required to do so. It will be many years before cases are lost, appealed, and won in each jurisdiction.

Currently available rules

Current rules of evidence generally allow that copies of documents may be admitted as evidence as if they were originals, as long as the pictures of the documents are captured in the normal course of business, maintained on a permanent media, and can be reproduced to approximately the original size. These are the rules that, for many years, have allowed a carbon copy, a photocopy, or a reproduction from a microfilm copy to be admitted as evidence. Note that this so-called "microfilm rule" never specifies the silver halide chemistry of microfilm, nor any other technology. Most legal experts feel that a document image system can meet the legal requirements of this law every bit as well as a microfilm system. Further, although a write-once optical disc system may be more convincing to a jury than rewriteable media, most experts find any optical or magnetic disc suitable for storage, when it is part of a system designed for unalterable storage.

Business records can be maintained in a big ledger book with a quill pen, in a computer system (large or small), or even on the back of used envelopes. For these records to be admissible as evidence, they must be maintained in the normal course of business, including procedures to insure that the records are complete and accurate, and (most important) the records are routinely used to make business decisions. A carbon copy of a letter or an invoice in a file may be on a different type paper, may not have an original signature or letterhead, may have extra information (filed by...), and probably does not have a postal return receipt. However, if this is the way a company maintains it's records of letters or invoices sent, and uses the file copy to verify what was sent, the copy should be admissible. If the company keeps it's files in an image system rather than filing cabinets, they are comparably admissible.

There is no single way that a document can be introduced as evidence in a court. The "microfilm rule" or the "business records rule" cover most cases. Some lawyers prefer using one or the other; in specific cases, one or the other may be more convenient, or still other rules of evidence may be used.

Original Paper vs. Microfilm vs. Image

Some companies are still nervous, and argue that, for security, they will keep a microfilm copy or even the original paper documents. This may not be wise.

If the original paper is retained for documents that are stored and used in an image system, a very strong negative message is sent to the court - "I don't trust my image system." The original paper document is generally good evidence, but what if it was misfiled (and nobody noticed, since it was not routinely used). If it cannot be found, the image (whether electronic or microfilm) may not be admissible in court because of the lack of trust shown in the image system.

Of course, some original documents must be kept. A title document, as proof of ownership, must be retained, as must certain other financial instruments such as stock certificates or bonds (which may be held for you by a broker). Until recently, to cash a check, you had to present an original, not a copy (but images of checks have been declared universally acceptable in the United States). Many companies keep these originals in a vault, and use the image copy for day-to-day inspection. Special rules may surround specific documents, so some companies retain a few percent of originals while other companies destroy all originals. If only those document that are required by law or regulation are retained, this does not show a lack of trust in the image system.

If a microfilm copy of the documents is created, but the copy is "only for safety" and is not used to make business decisions, the "business records rule" cannot be used to bring the evidence to court. Since the microfilm rule also applies to optical disc or other image media, either is sufficient, and the use of microfilm is unnecessary.

Best Evidence Rule

When records were maintained manually in huge ledgers, it was common to manually copy documents by rewriting them. With such an opportunity for error, the rules of evidence required that the "best evidence" be submitted - the original, not a copy. Some people (including myself in the early years) assume that the "best evidence rule" requires the original paper document. However, the "microfilm rule" not only allows copies of documents to be submitted, but specifies that they are originals. Similarly, if the "business record" is a document image printed or displayed by the image system then that printed document is an original. The best evidence rule is largely obsolete!


Credibility in court

Admissibility in court only allows a document to be considered by the court, and does not inherently assure that a document will be believed. In order to convince a court (or jury) to believe the content of the document, it may be necessary to describe the established office procedures, show that they are routinely followed, and demonstrate that the records are reliable and complete. Documented procedures, controls, and quality checks, such as those required by Sarbanes Oxley (SOX) are important for image systems, as well as for any other form of document or business record.


Many people just starting to use image systems are concerned about forgeries. Artists and publishers use image systems today to "cut and paste," just as paper was cut and pasted in the past. The quality of the result is very good, with little evidence of the cuts. The availability of this art and publishing technology on even home computers raises the concern about forgery. Is this a valid concern?

Computer technology can be used to create a forgery today just as paper, copiers, and microfilm have been useful tools for forgeries for many years. No media or technology is exempt from the possibility of forgery. When establishing the trustworthiness of the business records in court, it is helpful to have

New Technology

When dealing with an established technology, there may be an understanding and acceptance of the difficulties associated with the technology. A paper filing system that has 95% or 99% accuracy (recoverable documents) may be considered good by those who have had to maintain paper file systems. Microfilm records that have an occasional blurred image, or have poor exposure or contrast, are common and may be accepted as "good enough." On the other hand, expectation of a new technology, such as image systems, may be much higher. There may be less tolerance to misfiled (incorrectly indexed) documents, or documents that are hard to read. Therefore, procedures for use of an image systems must be established so that a higher quality standard can be maintained.


Image systems provide a great way to keep the evidence that are part of a business records - such as applications, orders, correspondence, receipts and other documentation. With the appropriate procedures for use of the image system, documents from an electronic image system provide excellent records for use in court.

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©1994, 2004, 2007 by Charles A. Plesums, Austin, Texas USA. ALL RIGHTS RESERVED. You may license additional copies of this document through a nominal royalty payment as specified on www.plesums.com.