On September 27, 2010, in State ex. Rel. J.B., the Appellate Division of the Superior Court of New Jersey allowed the State to use two satellite photographic images obtained from Google Earth as illustrative aids.

The case involved the lower court’s determination that a minor was a delinquent. Attempting to discredit the juvenile’s alibi that he was home at the time of an alleged burglary, the State offered into evidence the juvenile’s cell phone records and the testimony of a Verizon representative, who explained that cell phone calls are transmitted through the tower nearest the caller. The prosecution then offered photographs obtained from Google Earth to aid in showing that calls made from the juvenile’s cell phone during the burglary were transmitted through the cell phone tower that was closest to the burglary site (and not the tower closest to the juvenile’s home). Both towers, as well as the site of the burglary and the juvenile’s home, were pinpointed via Google Earth. Defense counsel objected, arguing that the prosecution failed to establish a “‘foundation in terms of how accurate [Google Earth] is.’”

The prosecution then offered the testimony of a police detective who had charted the course between the relevant points using the odometer in his patrol car as well as an atlas map on which the relevant points were marked by approximation. On this foundation, the prosecution again offered the satellite photographs from Google Earth. This time, the trial judge overruled defense counsel’s objection:

The [c]ourt finds that other than very recently what would have happened is . . . that the State would have brought in an atlas map and ask[ed] somebody familiar with the area to point on the map where different locations are and how you would get there. And this is just an updated manner of getting the same information. If the [d]efense wants to show that the information is incorrect, they can certainly do it by either cross examination or they can do exactly what I just suggested and bring in an atlas map and show where the exhibit that the State is offering is incorrect.

The Appellate Division found that the trial judge did not abuse his discretion in so ruling but was careful to note that the trial judge had expressed “skepticism” regarding the reliability of the Google Earth images and actually relied on the atlas map instead. Further, the Appellate Division reasoned that, because the images were offered as illustrative aids to illuminate the detective’s testimony (and not as substantive evidence), “their exclusion would not have altered the trial in any material or meaningful way.” And ultimately, it was noted that whether the Google Earth images were properly authenticated was “inconsequential” since defense counsel conceded in his summation that the State had proven that the juvenile’s cell phone was at the scene of the crime. The only disputed fact was whether the juvenile was at the scene.

State ex. rel. J.B. suggests that more courts will permit the use of digital images at trial for other non-evidentiary purposes. On the question of whether the digital images have been properly authenticated and may be accepted as substantive evidence, the Honorable Paul W. Grimm, U.S.M.J., offered his expertise on the authentication of digital photographs in general (and many other types of electronically stored information) in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 561-62 (D.Md. 2007) (citing Edward J. Imwinkelried, Can this Photo be Trusted?, Trial, October 2005). Additional discussion of the admissibility of electronically stored information by a member of the Gibbons E-Discovery Task Force can be found here.

Melissa DeHonney is Counsel to the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.