Court Admits Google Earth Evidence, But Only for Demonstrative Purposes — State ex rel. J.B.

[Post by Venkat]

State ex rel J.B., Case No. A-2228-08T4 (N.J. Ct. App.; Sept. 27, 2010)

J.B., a juvenile, was convicted for burglary, robbery, and trafficking in stolen property (“a jar of coins, a samurai sword collection, and a laptop”). There was conflicting testimony as to J.B.’s whereabouts. His co-participants testified that he participated, but his mother supported J.B.’s alibi by testifying that he was at home and could not have participated in these acts.

To rebut the alibi, the State produced phone records from Verizon, which demonstrated that calls were made from J.B.’s mobile phone while he was in the vicinity of the burglary and not from near J.B.’s home. The Verizon representative also testified that a mobile phone call terminated “to the cell tower closest to the caller,” which in this case were near the location of the burglary and not J.B.’s home. To demonstrate that the tower to which the calls at issue terminated were closer to the scene of the burglary, the prosecutor produced Google Earth satellite images.

J.B. objected to introduction to the Google Earth evidence for lack of foundation. The judge sustained the objection, noting:

although Google Earth is a tool a lot of people are using . . . I don’t know that [its reliability has] been established at this point.

The prosecutor then introduced testimony from a detective who claimed familiarity with the locations of the cell towers, and that he had measured the distances between the locations with the odometer of his police cruiser. The prosecutor then provided the detective with Google Earth images which showed the locations of the cell towers relative to the scene of the robbery and J.B.’s home. J.B.’s counsel objected again, but this time the court overruled his 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.

On appeal, the court held that it was within the trial judge’s decision to admit this evidence as a “demonstrative aid.” The evidence shouldn’t have been admitted by itself to show the distances in question, but given that the officer testified about the distances, the Google Earth images could be admitted as visual aids.

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I ran a Lexis search and found 28 hits for “Google Earth” and 84 for “Google Maps.” Although this was a surprisingly high number, none of the cases seemed to squarely address use of either for evidentiary purposes (many dealt with use of Google Maps to calculate witness fees based on the prevailing mileage rate).

It was interesting that the prosecutor did not try to use Google Maps instead of Google Earth. In any event, Google Earth and Google Maps are not the same as a random webpage or Wikipedia – in the case of Google Maps or Google Earth, the content is generated or controlled by Google. It may be fallible, but in the same way that an atlas may be. They’re certainly not subject to the “anyone can put information on the web” argument that is aimed at Wikipedia and at websites of unknown origin.

The Google Earth evidence wasn’t central to the case, and the prosecutor used testimony from a detective who testified as to the distances in question. What struck me even more is that the court didn’t even discuss the admissibility of the cell site data to show J.B.’s approximate location. A quick Lexis search indicates that courts are willing to admit this evidence, provided that the proper foundation is laid. (See, e.g., United States v. Benford, 2010 U.S. Dist. LEXIS 56556 (N.D. Ind. June 8, 2010) (allowing the use of expert testimony along with cell site data to refute alibi).)

Other coverage:Court Finds Google Earth Images to Be Admissible Evidence” (E-Discovery Law Alert)

Loosely related:Nicaraguan Invasion? Blame Google Maps” [Wired]

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