Ride the Lightning

HOW DO I AUTHENTICATE A GOOGLE EARTH PHOTO?

October 29, 2008

After the electronic evidence has been gathered, getting it admitted in court can be a fearsome headache. You would THINK that there would be some fairly standard rules that a reasonable lawyer could follow. You’d be way off the mark.

A recent question: “How do I authenticate a Google Earth photo?”

Here’s how I answered:

To some extent, the answer depends on whether you are in state or federal court. In general, state courts are looser about authentication (though a state judge I lectured with Monday staunchly said, "we are not looser – just more practical"), but even the federal courts run the gamut.

Stipulations or Requests for Admissions are the easiest way to get the evidence in. Failing that, most courts will allow a declaration, affidavit, etc. Minus opposition from the other side (and they need to have a credible argument), it should come in without a problem. Some federal courts have really tightened the standards, but in general, it will be admissible using one of the aforementioned techniques, though whether it is what is purports to be is remains subject to the determination of the fact-finder unless the other side has agreed that it is what it purports to be.

The good news is that electronic evidence is generally found to be what it purports to be in the absence of indicia to the contrary.

The cases on this are all over the map. Every time I lecture on Authentication and Admissibility, I get a headache. And no two judges seem to have precisely the same "take" on this. Find someone who knows your court to get court-specific advice.

Of course, you could always get someone knowledgeable from Google to testify, but see the alternative below, offered by another attorney:

My opposing counsel got a Google Earth map admitted by having a witness who was testifying about related matters testify that he often used Google Earth for navigation purposes in his professional capacity (the witness was a Water Patrol officer). He asked the witness questions to establish that:
1) Google Earth is used in the ordinary course of business by the Water Patrol for navigation purposes
2) In the patrol officer's experience, Google Earth is generally accurate
3) The particular map offered by Respondent was an accurate depiction of the location at issue

A related and interesting tidbit from my mailbox: 
 
In Indiana a couple years ago, I attended a CLE where about 25 lawyers and judges 'ruled' on evidence. Of the 12 judges, half were trial court and the other half appellate.  For a solid day they were given real evidentiary hypotheticals (created by trial lawyers from experience) and ruled by pushing buttons that tallied the votes on a big screen. The judges were all over the block on most every ruling. The lawyers were the most consistent and appeared to follow the rules more consistently. It was amazing. By the end of the program, the moderator was actually picking out some of the judges and asking 'on what grounds could you possibly exclude that evidence', etc.

Misery loves company and it appears that I’m not the only one with a headache.

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