Bernie Madoff is probably best known for screwing $65 billion out of investors in the biggest Ponzi scheme in history.  The fraudster, who in 2009 was sentenced to 150 years in prison, may not have worked alone—currently on trial before United States District Judge Swain are five of Madoff’s aides (who I will call the “Defendants”).

Defendants have recently made a curious request—to remove any images of the now infamous “Soft Screw” from any evidence presented.  The Soft Screw was a sculpture found in Madoff’s office, one he apparently treasured, and one that, well, looked like a gigantic, 4-foot, slightly bent (hence the “soft”) screw.  The Defendants asked this because, as their lawyers have argued, the screw would unfairly prejudice the jury against the Defendants.  Essentially they believe that the prosecutors would represent the screw as a symbol of Madoff, and by extension his aides, unabashedly screwing over investors.

As Eric Breslin, one of the Defendants’ lawyers, put it, “the issue with this screw is that there is a secondary meaning that the government is going to try to implant with the jury, that it was a kind of inside joke . . . that was known to some of the defendants here.” Andrew Frisch, another attorney for one of the Defendants, stated another reason to remove the screw: “even if observers of the screw could have interpreted it as bespeaking Mr. Madoff’s resolve to impale rather than fasten, the link between any such resolve of the specific allegations of criminal fraud in this case is too fanciful and attenuated to justify its admission.”

Judge Swain agreed, telling prosecutors to Photoshop the screw out: “see if you can get that screw out of the picture.”

Of course, such an order is much different from, say, if a defendant cropped a murder weapon from a photo, before submitting it as evidence, but it does bring up an interesting point—are there any ethical violations to Photoshopping evidence?  Given the power of Photoshop, shouldn’t courts avoid encouraging digital alteration of images, even when there may be good cause?

Rule 403 states that the “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Still, perhaps allowing specific portions of a piece of evidence to be removed, and presenting the image as if such portions were never even there, may go too far, and remove a jury’s trust in the validity of any evidence presented.