Wednesday, July 14, 2010

Authentication of on-line images

From People v Beckley, et all (B212529 - Ca. 2nd Appellate District): "In this opinion we hold that the prosecution‘s failure to authenticate a photograph and "gang roster" downloaded from internet web sites should have barred their admission but that the errors were harmless as to both defendants. We also conclude there was insufficient evidence to support the street gang enhancement of each defendant‘s sentence. We modify the judgments as to each defendant by striking the street gang enhancements. We further modify Finn‘s judgment by striking the gun use enhancements under Penal Code section 12022.53, subdivisions (b) through (d) and remand for resentencing."

"In rebuttal to Beckley‘s and Fulmore‘s testimony denying Beckley‘s gang involvement, Detective Schoonmaker testified regarding gang-related evidence he recovered from the MySpace.com internet accounts of Finn and Beckley"

"To rebut Fulmore‘s testimony that she did not associate with the Southside Compton Crips and that she insisted Beckley stop his association with the gang, the prosecution offered a photograph purportedly showing Fulmore flashing the Southside Compton Crips gang sign. Detective Schoonmaker testified that he downloaded the photograph from Beckley‘s home page on the internet website MySpace. The trial court admitted the photograph over both defendants‘ objections that it had not been authenticated. We agree with defendants that the court erred in admitting the photograph but we conclude that the error was harmless."

"A photograph is a "writing" and "[a]uthentication of a writing is required before it may be received in evidence." (Evid. Code, §§ 250, 1401, subd. (a).)"

"In People v. Bowley (1963) 59 Cal.2d 855, our Supreme Court established the two methods of authenticating a photograph. "It is well settled," the court stated, "that the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission into evidence." (Id. at p. 859.) In addition, the court noted, authentication of a photograph "may be provided by the aid of expert testimony, as in the Doggett case, although there is no one qualified to authenticate it from personal observation." (Id. at p. 862.) In People v. Doggett (1948) 83 Cal.App.2d 405, the Court of Appeal upheld the admission of a photograph showing the defendants committing a crime. Because only the victim and the defendants, none of whom testified, were present when the crime took place and one of the defendants took the photograph, there was no one to testify that it accurately depicted what it purported to show. The People, however, produced evidence of when and where the picture was taken and that the defendants were the persons shown committing the crime. Furthermore, a photographic expert testified that the picture was not a composite and had not been faked. The court held this foundation sufficiently supported the photograph‘s admission as substantive evidence of the activity depicted. (Id. at p. 410.) Citing Doggett with approval, the Supreme Court held in Bowley that "a photograph may, in a proper case, be admitted into evidence not merely as illustrated testimony of a human witness but as probative evidence in itself of what it shows." (People v. Bowley, supra, 59 Cal.2d at p. 861.)

"Although defendants conceded that the face in the MySpace photograph was Fulmore‘s, neither method of authentication recognized in Bowley qualified the photo for admission as accurately depicting that Fulmore had assumed the pose shown in the photograph. Schoonmaker could not testify from his personal knowledge that the photograph truthfully portrayed Fulmore flashing the gang sign and, unlike Doggett, supra, 83 Cal.App.2d at p. 410, no expert testified that the picture was not a 'composite‘ or 'faked‘ photograph. Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when Doggett and Bowley were decided. Recent experience shows that digital photographs can be changed to produce false images. (See e.g. U. S. v. Newsome (3d Cir. 2006) 439 F.3d 181, 183 [digital photographs used to make fake identification cards].) Indeed, with the advent of computer software programs such as Adobe Photoshop "it does not always take skill, experience, or even cognizance to alter a digital photo." (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time (2009) 2009 J. L. Tech. & Pol‘y 175, 183.) Even the Attorney General recognizes the untrustworthiness of images downloaded from the internet, quoting the court‘s warning in St. Clair v. Johnny’s Oyster & Shrimp, Inc. (S.D. Tex 1999) 76 F. Supp.2d 773, 775 that "[a]nyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time.‘"

... to be continued ...

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