Do I Need To Follow The Ancient Rules Of Authentication To Use A Google Maps Image As Evidence During My Trial? Yes, Says Florida Appellate Court
Once upon a time not too long ago, if you wanted to see what a particular street location looked like, you needed to drive by and take a look. Nowadays, you just look at Google Maps and presume it is accurate because, after all, it is an image generated by what is widely considered a reliable source for such information. But does the common use and presumed reliability of Google Maps render its information admissible in court? Not unless the age-old authentication rules applicable to photographs are followed, says a Florida appellate court. See City of Miami v. Kho, Case No. 3D18-2369, 2019 WL 5198401, 44 Fla. L. Weekly D2555c (Fla. 3d DCA Oct. 16, 2019).
The underlying case involved a slip and fall on a Miami sidewalk. The plaintiff sued the City and alleged that the City did not properly maintain the sidewalk. To prove the condition of the sidewalk at the time of the incident, the plaintiff presented an image from Google Maps, but did not present any witness testimony to establish that is how the sidewalk really looked at the time. The City objected on the basis that the plaintiff did not properly authenticate the image. The trial court overruled the City’s objection and allowed the plaintiff to use the image to show the City had constructive knowledge of the condition of the sidewalk at the time of the incident. The City lost the trial and appealed to challenge the trial court’s ruling on the Google Maps image.
In finding that the trial court abused its discretion in admitting the Google Maps image, the Third District Court of Appeal explained:
Section 90.901 of the Florida Evidence Code provides that evidence must be authenticated before it is admitted. § 90.901, Fla. Stat. (2019). The burden of providing sufficient evidence to support a finding that the evidence is what it purports to be rests with the proponent. Id. A Google Maps image must be authenticated in the same manner as any other photographic evidence before it is admitted in evidence.
“There are two methods of authenticating photographic evidence.” Dolan v. State, 743 So. 2d 544, 545 (Fla. 4th DCA 1999). The first is the “pictorial testimony” method, which requires a witness with personal knowledge to testify that the image fairly and accurately depicts a scene. Id. The second is the “silent witness” method, under which the photograph “may be admitted upon proof of the reliability of the process which produced the tape or photo.” Id. at 545–46 (citing Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982)). A trial judge may admit a photograph under the silent witness method after considering the following factors:
(1) evidence establishing the time and date of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;
(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and
(5) testimony identifying the relevant participants depicted in the photographic evidence.
Wagner v. State, 707 So. 2d 827, 831 (Fla. 1st DCA 1998). The Google Maps photograph in this case was not authenticated by either of these methods.
As for the pictorial testimony method, Kho did not present testimony from any witness with personal knowledge of the sidewalk’s condition in November of 2007. The testimony of Kho’s expert was insufficient to authenticate the photograph, as he testified that he had not visited the subject location prior to her fall in 2010. Indeed, Kho conceded that the photograph was not authenticated through the pictorial testimony method by failing to address it in her brief to this Court. See Agee v. Brown, 73 So. 3d 882, 886 (Fla. 4th DCA 2011).
On appeal, Kho argues that the photograph was authenticated under the silent witness method. Here, Kho failed to offer evidence in support of any of the Wagner factors, and thus, failed to authenticate the photograph. The date stamp on the photograph was insufficient to establish the date on which it was taken, as the trial court correctly noted that the photograph was not self-authenticating. Kho did not present any evidence as to the operating capabilities or condition of the equipment used by Google Maps. There also was no testimony as to the procedures employed by Google Maps in taking the photograph. Given the lack of evidence as to any of the relevant factors, the trial court did not make any findings regarding admissibility under the silent witness method.
Since the photograph was not authenticated, it was not properly admitted in evidence. See § 90.901, Fla. Stat. Without the Google Maps photograph, Kho failed to present legally sufficient evidence of constructive knowledge. See Miami-Dade Cty. v. Jones, 232 So. 3d 1127, 1130 (Fla. 3d DCA 2017). Despite Kho’s contention that the admission of the photograph was harmless error, it is evident that it was not. The trial court admitted the unauthenticated photograph and then based its denial of directed verdict solely on that inadmissible evidence.
City of Miami, 2019 WL 5198401 *2-3.
The motto of this story: regardless of how commonly used and relied upon that modern technology may be, make sure you follow the age-old evidentiary rules to establish the authenticity and admissibility of the product of that technology.
Matthew J. Meyer, Esq.
Ansa Assuncao, LLP