Escorts, the Flash Drive and Authentication

This post deals with a civil case, not a criminal one.  More precisely, it deals with the custody litigation between Lori and Frank Perry.  In re Marriage of Perry, __ N.E.2d __, 2012 WL 1622619 (Illinois Court of Appeals 2012). 

Frank and Lori were married on April 17, 2000, and at the time this case arose had “three minor children, Frank Jr., Michael and Christopher.”  In re Marriage of Perry, supra. Frank

is a fire inspector for the city of Chicago and works 10–hour shifts, starting at 7 a.m. and ending at 5 p.m., Mondays through Thursdays. Frank also works as an exam proctor for the college of the city of Chicago every Friday from between 2 and 5 p.m. and ending at 10 p.m., and on Saturdays beginning at 7 a.m. working all day. Lori has been a stay-at-home mother since the parties' marriage. . . .

 

In re Marriage of Perry, supra. 

“On or about February 15, 2011, Frank left the house because Lori threatened him, stating, `If I could kill you and get away with it I would.’” In re Marriage of Perry, supra. 

This apparently was not an unprecedented event in their marriage:

Lori had been physically violent with Frank in the past, and Frank felt it was in his best interest to leave. Frank spent two nights at his mother's house and then stayed in a hotel for two nights. Even though Frank left the house, he sent texts to Lori to try to resolve their problems. 

While Frank was out of the house, Lori changed the locks. According to Frank, he repeatedly asked for the opportunity to see the boys but his requests were denied. Lori prevented Frank from seeing the children for six weeks.

In re Marriage of Perry, supra. 

On March 3, 2011, Lori filed a petition for to dissolve the marriage. In re Marriage of Perry, supra.  On March 17, Frank filed his response.  In re Marriage of Perry, supra.  On March 15, Lori filed a motion for interim relief seeking: “(1) temporary custody of the children; (2) temporary child support; and (3) temporary exclusive use and possession of Frank's nonmarital home.”  In re Marriage of Perry, supra.  The court held a hearing on her petition that began on “July 27, 2011 and concluded on October 11.”  In re Marriage of Perry, supra.  The judge heard “testimony from three witnesses over four days of contentious hearings.”  In re Marriage of Perry, supra. 

Frank testified, among other things, that “ he believed Lori was working as an escort and maintained that her work negatively affected the children, including their schoolwork and relationship with Lori.”  In re Marriage of Perry, supra.  He also offered into evidence

a flash drive containing photographs of Lori which . . . he downloaded from a Web site called `Chix Escorts’ on the Internet offering escort services. Frank downloaded the pictures and the information offered on the Web site, which included an e-mail and Lori's cell phone number, onto the flash drive. Counsel for Lori objected to the flash drive based on relevance [and] foundation. . . .

Frank testified that he ran Lori's escort name, `April,’ in the . . . Google, found pictures of Lori on the Web site `Chix Escorts,’ and downloaded copies of the pictures onto his flash drive. . . . The court found the photographs were relevant and admitted them into evidence. There was no further ruling on the remaining objections. . . .

In re Marriage of Perry, supra. 

Lori testified in rebuttal that she did not

set up the Web site `Chix Escorts.’ Lori testified that one of the photographs was an old picture on Frank's cell phone, and she further maintained that all of the photos on the `Chix Escorts’ Web site were photos she had previously sent to Frank. Lori had had Frank's cell phone since Frank left the house, but she did not have it with her in court when she gave her rebuttal testimony.

In re Marriage of Perry, supra. 

On October 11, after hearing closing arguments from both sides, the judge denied Lori

the relief she sought in her motion and granted Frank temporary custody of the minor children and temporary exclusive possession of the house and allowed Lori 14 days to vacate the home. The court found both parties lied on the stand, but it held that on the issue of credibility, the court had to weight the testimony in a light most favorable to Frank. 

The court . . . found it could explain Frank's lies but not Lori's, `other than to attempt to gain an advantage in this litigation.’ The court specifically took issue with Lori's numerous trips and unexplained income during 2010, which the court inferred was due to her working as an escort. 

In re Marriage of Perry, supra. 

On October 21, Lori filed an emergency motion to stay enforcement of the judge’s order pending her appeal. In re Marriage of Perry, supra.  That same day, the judge granted her motion and entered an order staying the order of October 11, 2011.  In re Marriage of Perry, supra.  On December 7, the Court of Appeals entered an order granting Lori “temporary possession and custody of the minor children and temporary exclusive possession of the property”.  In re Marriage of Perry, supra.  It also ordered Frank to "pay $300 per week in 

temporary child support”. In re Marriage of Perry, supra. 

Lori’s appeal made its way through the system, with this opinion issuing on May 7, 2012.  In re Marriage of Perry, supra.  She raised several issues, but we’re only concerned with her argument that the lower court “erred in admitting the flash drive into evidence because Frank did not sufficiently authenticate and establish a foundation for the photographs”.  In re Marriage of Perry, supra. 

As Wikipedia explains, in law a foundation is

sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits or testimony of witnesses. Material evidence is important evidence that may serve to determine the outcome of a case. . . . The type of preliminary evidence necessary to lay the proper foundation depends on the form and type of material evidence offered.

The lack of foundation is a valid objection that an adverse party may raise during trial.

The Court of Appeals began its analysis of this issue by noting that the standard of review it uses for issues like this is that “the admissibility of evidence rests in the sound discretion of the trial court, and that determination will not be reversed on appeal absent an abuse of discretion.”  In re Marriage of Perry, supra.  After reviewing the proceedings below, the court held that Lori had waived her objection to the lack of foundation for the photographs.  In re Marriage of Perry, supra.

At the hearing, Lori’s lawyer objected to the admission of the photographs “based on (1) relevance [and] (2) foundation”.  In re Marriage of Perry, supra.  The judge ruled they were relevant, allowed them into evidence and gave “Lori's counsel an opportunity to examine Frank regarding [them].”  In re Marriage of Perry, supra.  Her lawyer never

obtained a ruling from the court on her objection based on foundation. . . . `[A] party waives an objection where a ruling is not requested after the trial court fails to make one.’ Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill. App. 3d 305 (2002). . . . 

The long-standing rule is that `. . . to preserve an issue for review, an appellant must obtain either a ruling on the issue or a refusal to rule thereon from the trial court.’ In re Appointment of Special State's Attorney, 305 Ill. App. 3d 749 (1999).

In re Marriage of Perry, supra. 

The Court of Appeals also found that “any error in the court viewing and admitting the photos was invited by Lori's counsel”. In re Marriage of Perry, supra.  While her lawyer was cross-examining Frank on how he found and downloaded the photographs,

the court apparently inserted the flash drive and the following exchange between Lori's counsel and the court took place:

`MR. MIRABELLI: Your Honor, may I take a look at what you're looking at?

THE COURT: Right now I'm looking and it's bothering me. Are you suggesting that I open one of these, Mr. Mirabelli?

MR. MIRABELLI: Yes. Let's see what it is he says he downloaded.’

The court then proceeded to open the files identified as photos of Lori. The second photograph opened as `Chix Escorts’ and was a photo of a woman seminude in a tub, captioned `Sweet Little April.’ Frank identified `Sweet Little April’ as Lori. 

In re Marriage of Perry, supra.  The court explained that Lori could not object to the court’s viewing the photographs “when her counsel specifically requested the court to view them.”  In re Marriage of Perry, supra.  It also reiterated that Lori had waived her foundation objection by not obtaining a ruling on it.  In re Marriage of Perry, supra. 

But the Court of Appeals also noted that it could “decline to apply the rule of waiver and consider the issue on the merits where the case is a matter affecting child custody and the issue is an issue of first impression.”  In re Marriage of Perry, supra.  It declined to apply waiver to the foundation issue because this was a custody case and because “the issue involving foundation for the admission of electronic duplicates of photographs from a Web site which were saved onto a flash drive is a novel issue which has not yet been addressed by Illinois courts.”  In re Marriage of Perry, supra. 

The court found that Frank “laid a sufficient foundation and sufficiently authenticated the photographs as photographs of Lori to allow their admission into evidence.”  In re Marriage of Perry, supra.  It then addressed “whether Frank laid a sufficient foundation to establish that the photographs were copies of photographs from the `Chix Escorts’ site. In re Marriage of Perry, supra.  It noted that “[c]ontrary to Lori's assertions that Frank did not authenticate the relevant time of the photographs,” Frank testified that the photographs were a “fair and accurate representation of Lori” at the time he downloaded them because of her hair:  “Frank testified that at one time it was shorter and then she had added extensions to her hair, and the photographs were an accurate representation of the current length of Lori's hair.” In re Marriage of Perry, supra.  

The court explained that under Illinois Rule of Evidence 901, “the testimony of a witness that a matter is what it is claimed to be is sufficient to satisfy the requirement of authentication.”   In re Marriage of Perry, supra.  It noted that expert testimony is not necessary; “all that is needed is testimony” of a person “with personal knowledge of the photographed object, at the time relevant to the issues” and that “the photograph is a fair and accurate representation at that time.”  In re Marriage of Perry, supra.

The Court of Appeals found it was a “closer question” whether “Frank laid a sufficient foundation to establish that the photographs were copies of photographs from the `Chix Escorts’” site.  In re Marriage of Perry, supra.  It noted that “only one of the photographs on Frank's flash drive bore the logo for the `Chix Escorts’ Web site” and that Lori claimed “the pictures were old photos she had sent . . . Frank that were on his cell phone.” In re Marriage of Perry, supra.  It found that “at the hearing Lori raised a genuine question as to the authenticity of the original photographs” because none of them were screenshots of the

Web site, nor did they include the Internet address on the photos. Given the ability to manipulate such digital images, and given Lori's concerns regarding the ability of others to post pictures online, we cannot conclude there was a sufficient foundation that the photographs of Lori were from the `Chix Escorts’ Web site, and we cannot conclude that the admission of the photographs to prove Lori was specifically part of the online `Chix Escorts’ service was not an abuse of discretion.

In re Marriage of Perry, supra. 

But the Court of Appeals also found that any error in admitting the photographs for the purpose of establishing that Lori was

part of the `Chix Escorts’ online escort service was harmless. The court had other evidence before it that Lori was working as an escort and did not base its decision on the fact she was working for this particular escort agency. The court also had other evidence before it that granting temporary custody to Lori was not in the children's best interest.

In re Marriage of Perry, supra. 

For this and other reasons, it affirmed the order entered by the lower court.  In re Marriage of Perry, supra. 

Addendum - August 17, 2012:

The attorney for one of the parties informed me today that this opinion has been withdrawn, as you can see from this entry:

Posting Date 05/08/12

Filing  Date 05/07/12

Docket      Number 1-11-3054 NRel

Public Domain  Citation 2012 IL App (1st) 113054

Case name In re Marriage of Perry - Withdrawn 7/10/12

I cannot find a link to the order in question, but the court was ruling on Lori Perry's Motion to Advise Court of Voluntary Dismissal and Request for Alternative Relief.  The court granted that motion and also granted the "alternative relief requesting to vacate this Court's Opinion filed on May 7, 2012".  The lawyer "vehemently objected to the rationale of the opinion" examined in this post and therefore sought to, and succeeded in, having it vacated.