June 8, 2022
Commentary By Eric Bluestein, Esq.
Presently, items that can be easily located on the world wide web are not so readily admissible at trial. This is because “websites are not self-authenticating.” See Digiovanni v. Deutsche Bank Nat’l Trust, 226 So. 3d 984, 989 (Fla. 2d DCA 2017), quoting Nationwide Mutual Fire Insurance v. Darragh, 95 So. 3d 897, 900 (Fla. 5th DCA 2012). For example, under the current law, a party wishing to introduce a photograph from Google Maps must authenticate the photograph “in the same manner as any other photographic evidence before it is admitted in evidence.” See City of Miami v. Kho, 290 So. 3d 942, 944 (Fla. 3d DCA 2019).
This means the attorney seeking to admit a photograph has two options. “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,” citing Dolan v. State, 743 So. 2d 544, 545 (Fla. 4th DCA 1999). This sounds simple enough, but who, among your clients, or witnesses, can testify under oath that a Google Maps photograph taken of a sidewalk three years before your client’s trip and fall, fairly and accurately depicts what the sidewalk, including all cracks and unevenness, looked like at that time?
The other available option “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.” Pursuant to the “silent witness” method, a photograph may be admitted after a trial judge considers five factors:
- evidence establishing the time and date of the photographic evidence;
- any evidence of editing or tampering;
- the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;
- 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
- testimony identifying the relevant participants depicted in the photographic evidence, citing Wagner v. State, 707 So. 2d 827, 831 (Fla. 1st DCA 1998).
Authentication through this technique poses challenges, too, as the proponent of a Google Maps photograph may need to present evidence “as to the operating capabilities or condition of the equipment used by Google Maps” and “testimony as to the procedures employed by Google Maps in taking the photograph.”
Help is on the way in the form of Florida Statute Section 90.2035 (the Constitutionality of the statute is beyond the scope of this article. See generally DeLisle v. Crane, 258 So. 3d 1219 (Fla. 2018)), titled “Judicial notice of information taken from web mapping services, global satellite imaging sites, or Internet mapping tools.” This new statute provides that:
(1)(a) Upon request of a party, a court may take judicial notice of an image, map, location, distance, calculation, or other information taken from a widely accepted web mapping service, global satellite imaging site, or Internet mapping tool, if such image, map, location, distance, calculation, or other information indicates the date on which the information was created.
(b) A party intending to offer such information in evidence at trial or at a hearing must file notice of such intent within a reasonable time, or as defined by court order. The notice must include a copy of the information and specify the Internet address or pathway where such information may be accessed and inspected.
(2)(a) A party may object to the court taking judicial notice of the image, map, location, distance, calculation, or other information taken from a widely accepted web mapping service, global satellite imaging site, or Internet mapping tool within a reasonable time or as defined by court order.
(b) In civil cases, there is a rebuttable presumption that information sought to be judicially noticed under this section should be judicially noticed. The rebuttable presumption may be overcome if the court finds by the greater weight of the evidence that the information does not fairly and accurately portray what it is being offered to prove or that it otherwise should not be admitted into evidence under the Florida Evidence Code.
(c) If the court overrules the objection, the court must take judicial notice of the information and admit the information into evidence.
(3) In criminal cases, the court must instruct the jury that the jury may or may not accept the noticed facts as conclusive.
(4) This section does not affect, expand, or limit standards for any matters that may otherwise be judicially noticed.
This statute is set to take effect July 1, and will assist litigants in all types of cases. Most notably, images from Google Maps and similar websites which are ubiquitous in daily life will now be more prevalent at trial. For example, in certain premises liability cases, the parties will be able to use photographs from the internet to prove, or disprove, that a
dangerous condition existed long enough to establish constructive notice of the dangerous condition.
Similarly, in car crash cases, the parties will more easily be able to utilize internet photographs to prove, or disprove, the presence of traffic warnings, traffic cones, visual obstructions, markings on the road, as well as the distances and routes traveled by the parties.
In short, change is coming, and litigators need to begin contemplating how to best use this new statute in their presentation of evidence.
Eric Bluestein is a partner at Dolan Dobrinsky Rosenblum Bluestein where he focuses his practice in personal injury, automobile accidents, medical malpractice, consumer fraud, premises liability, wrongful death litigation, insurance bad faith and commercial litigation. He is the immediate-past president of the Miami-Dade Trial Lawyers Association.