This post examines a recent decision from the Court ofAppeals of New York: People v. Price,
2017 WL 2742214 (2017). The court begins the opinion by explaining that
[p]n this appeal, we are asked to
determine whether the People proffered a sufficient foundation at trial to
authenticate a photograph—purportedly of defendant holding a firearm and
money—that was obtained from an internet profile page allegedly belonging to
defendant. We conclude that the People's proof fell short of establishing the
requisite authentication to render the photograph admissible in evidence.
People v. Price,
supra.
The opinion goes on to explain that
Defendant was convicted by a jury of
two counts of robbery (Penal Law §§ 160.15[4]; 160.10[1] ). At the trial, a
witness testified that he was conducting milk deliveries with the victim when
he noticed—from his vantage point inside the delivery truck—that someone was
holding a gun about a foot away from the chest of the victim, who was standing
outside the truck. After exchanging words with the gunman, the victim threw a
handful of cash from his pocket to the ground. The gunman's accomplice gathered
the money and the two robbers fled. The witness never saw the gunman's face and
was unable to identify defendant at trial as either of the perpetrators.
Following this testimony, the People
informed the court that they intended to introduce a photograph that was`found
on the internet,’ which purportedly depicted defendant holding a handgun.1 According
to the People, the victim would identify the gun in the photograph as the
weapon used during the robbery, and a detective would identify defendant as the
individual holding the gun in the picture. Defendant objected to the admission
of the photograph in evidence, arguing that the People had not proffered a
sufficient foundation establishing the authenticity of the photograph as a fair
and accurate representation of defendant holding a gun and that the photograph
had not been altered. In response, the People contended that the necessary
foundation would be established through proof that the photograph was obtained
from a publicly available web page that bore an internet profile associated
with defendant's surname and photographs of him. Over defendant's renewed
objection to the sufficiency of the proffered authentication, the court ruled
that the photograph would be admissible in connection with the proposed
testimony.
People v. Price,
supra.
The Court of Appeals then goes on to explain that
[t]hereafter, the victim testified to
the circumstances of the robbery, and he identified defendant as the gunman.
The victim described the firearm used in the robbery as a 9–millimeter
automatic with a silver rectangular feature on the top of the barrel, but he
admitted that he had no prior familiarity with firearms. When shown the portion
of the photograph obtained from the website depicting the gun, the victim
testified that the gun looked “similar” to the gun used in the robbery, but he
could not identify the gun in the photograph as the one held by the robber.
A police detective subsequently
testified that she found the photograph in question on the website
“BlackPlanet.com.” The detective had searched defendant's surname `Price’ and,
after scrolling through several pages of results containing approximately 50
internet profiles—the usernames of which incorporated the term `Price’—the
detective s`w a public profile that contained several photographs of defendant
and had the user name “Price_ OneofKind.’ There was no reference to defendant's
full name on the profile page and, while the detective testified that the
profile page listed the purported user's age and hometown, she did not testify
as to whether any of this information matched defendant's pedigree information.
Nor were any of the pages containing this pedigree information introduced to
connect defendant to the specific user of this website.
People v. Price,
supra.
The Court of Appeals then points out that the
photograph at issue was posted to the
internet profile page several months before the robbery. The detective
testified that the individual in the photograph holding the handgun “look[ed]
like” defendant. She explained that she had printed the photograph from the
internet website, and she asserted that the printout was a true and accurate
depiction of the photograph she observed on the website. However, the detective
admitted that she did not know who took the photograph, when it was taken,
where it was taken, or under what circumstances it was taken. Nor did she know
whether the photograph had been altered or was a genuine depiction of that
which it appeared to depict. Nevertheless, after the photograph was admitted
into evidence over defendant's objection, the detective identified defendant as
the individual in the picture.
People v. Price,
supra.
The Court of Appeals then addresses another issue, noting
that during
[d]uring summations, the People urged
the jury to conclude that the photograph was taken from an internet profile
page belonging to defendant, and they emphasized that the victim `recognized’
the gun depicted in the photograph as the one held by the gunman. Following
deliberations, the jury found defendant guilty of both counts of robbery.
Upon defendant's appeal, the Appellate
Division affirmed the judgment of conviction, holding that “the People laid a
proper foundation for admission of the photograph, it was relevant to the issue
of the defendant's identity as the gunman, and its probative value outweighed
any prejudicial effect” (127 A.D.3d 995, 996, 4 N.Y.S.3d 924 [2d Dept 2015] ).
A Judge of this Court granted defendant leave to appeal (25 N.Y.3d 1206 [2015]).
People v. Price,
supra.
Having outlined what happened at Price’s trial, the Court of
Appeals took up the arguments he made on appeal, beginning with this argument
that
the trial court erred by admitting into
evidence the photograph obtained from the internet because the People failed to
sufficiently authenticate it. Defendant contends that the People's
authentication proffer was lacking because the victim could not identify the
firearm in the image and because the People presented no evidence that the
photograph was genuine and had not been altered. The People argue in
response that the photograph was sufficiently authenticated by the detective's
testimony that the printout was a fair and accurate representation of the image
shown on the internet profile page, combined with the indicia suggesting that
the profile belonged to defendant.
People v. Price,
supra.
The court went on to analyze the extent to which the
photograph at issue had been properly authenticated, explaining that
`[i]n order for a piece of evidence to
be of probative value, there must be proof that it is what its proponent says
it is. The requirement of authentication is thus a condition precedent to
admitting evidence” (United States v. Sliker,751 F.2d 477, 497 [2d
Cir1984]; see 1–4 New York Evidentiary Foundations § A [2016]
). `Accuracy or authenticity is established by proof that the offered evidence
is genuine and that there has been no tampering with it’ (People v. McGee, 49
N.Y.2d 48, 59 [1979] ). We have explained that `[t]he foundation necessary
to establish [authenticity] may differ according to the nature of the evidence
sought to be admitted’ (id.). For example, mere identification by one
familiar with an item of evidence may suffice where the item is distinct or
unique (see People v. Julian, 41 N.Y.2d 340, 343 [1977]. see
e.g. People v. Flanigan,174 N.Y. 356, 368 [1903] ). Where a party
seeks to admit tape recordings, authenticity may often be established by
testimony from a participant in the conversation attesting to the fact that the
recording is a fair and accurate reproduction of the conversation (see People
v. Ely,68 N.Y.2d 520, 527 [1986]; People v. Arena, 48
N.Y.2d 944, 945 [1979]). In addition, testimony establishing a chain of custody
may suffice to demonstrate authenticity in other circumstances (see
e.g. Julian, 41 N.Y.2d at 343, 392 N.Y.S.2d 610, 360 N.E.2d
1310; Amaro v. City of New York, 40 N.Y.2d 30, 35
[1976]; People v. Connelly, 35 N.Y.2d 171, 174 [1974]; see
also People v. Patterson, 93 N.Y.2d 80, 84 [1999]; Ely, 68
N.Y.2d at 528, 510 N.Y.S.2d 532, 503 N.E.2d 88). Ultimately, `the availability
of these recognized means of authentication should ordinarily allow for and
promote the general, fair and proper use of new technologies, which can be
pertinent truth-yielding forms of evidence’ (Patterson, 93 N.Y.2d
at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665).
People v. Price,
supra.
The opinion continues, explaining that
[w]ith respect to photographs, we have
long held that the proper foundation should be established through testimony
that the photograph `accurately represent[s] the subject matter depicted' (People
v. Byrnes, 33 N.Y.2d 343, 347 [1974]; see Patterson, 93 N.Y.2D AT 84; New York Evidentiary
Foundations § I [2016]; Prince, Richardson on Evidence § 4–212 [2008]; Fisch on
New York Evidence § 142, at 82–83 [2d ed 1977] ). “Rarely is it required that
the identity and accuracy of a photograph be proved by the photographer.
Rather, since the ultimate object of the authentication requirement is to
insure the accuracy of the photograph sought to be admitted into evidence, any
person having the requisite knowledge of the facts may verify,’ or an expert
may testify that the photograph has not been altered (Byrnes, 33
N.Y.2d at 347, 352 N.Y.S.2d 913, 308 N.E.2d 435; see Patterson, 93
N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665).
The People failed to authenticate the
photograph through any of these methods at trial, as the victim was unable to
identify the weapon as that which was used in the robbery,and
no other witnesses testified that the photograph was a fair and accurate
representation of the scene depicted (see People v. Marra, 21
N.Y.3d 979, 981 [2013], affg 96 A.D.3d 1623, 1625–1626, 946
N.Y.S.2d 783 [4th Dept 2012]; Byrnes, 33 N.Y.2d at 347, 352
N.Y.S.2d 913, 308 N.E.2d 435; Alberti v. New York, Lake Erie & W.
R.R. Co., 118 N.Y. 77, 88 [1889]; see also Zegarelli v.
Hughes, 3 N.Y.3d 64, 69 [2004] ) or that it was unaltered.
Indeed, the People do not claim, on appeal, to have satisfied the traditional
authentication requirements.
People v. Price,
supra.
The courr goes on to explain that
[r]ather, the People argue that
authentication of the photograph by a witness with personal knowledge of the
scene depicted or through expert testimony is unnecessary in cases such as
this, where the photograph at issue is obtained from an internet profile page
that the People claim is controlled by defendant. To that end, the People point
out that courts of several other jurisdictions have adopted a two-pronged
analysis for authenticating evidence obtained from internet profiles or social
media accounts. This approach allows for admission of the proffered evidence
upon proof that the printout of the web page is an accurate depiction thereof,
and that the website is attributable to and controlled by a certain person,
often the defendant (see e.g. State v. Jones, 318 P.3d 1020,
*5–*6 [Kan Ct App 2014]; Smoot v. State, 316 Ga.App. 102, 109–111,
729 S.E.2d 416, 425–426 [Ga Ct App 2012]; United States v. Bansal, 663
F.3d 634, 667 [3d Cir2011]; Tienda v. State, 358 S.W.3d 633,
642 [Tex Crim App 2012] . The courts that have adopted this approach have
generally held that circumstantial evidence, such as identifying information
and pictures, may be used to authenticate a profile page or social media
account as belonging to the defendant. Relying on these out-of-state cases, the
People contend that the detective's testimony identifying and describing the
profile page she found on BlackPlanet.com, combined with her testimony that the
printout was an accurate representation of the photograph displayed thereon,
provided sufficient authentication evidence to allow admission of the
photograph. We disagree.
People v. Price,
supra.
The court goes on the conclude the opinion by explaining
that
[a]ssuming without deciding that a
photograph may be authenticated through the method proposed by the People, the
evidence presented here of defendant's connection to the website or the
particular profile was exceedingly sparse.3 For
example, notably absent was any evidence regarding whether defendant was known
to use an account on the website in question, whether he had ever communicated
with anyone through the account, or whether the account could be traced to
electronic devices owned by him. Nor did the People proffer any evidence
indicating whether the account was password protected or accessible by others,
whether non-account holders could post pictures to the account, or whether the
website permitted defendant to remove pictures from his account if he objected
to what was depicted therein. Without suggesting that all of the foregoing
information would be required or sufficient in each case, or that different
information might not be relevant in others, we are convinced that the
authentication requirement cannot be satisfied solely by proof that defendant's
surname and picture appears on the profile page. Thus, even if we were to
accept that the photograph could be authenticated through proof that the
website on which it was found was attributable to defendant, the People's
proffered authentication evidence failed to actually demonstrate that defendant
was aware of—let alone exercised dominion or control over—the profile page in
question (see United States v. Vayner, 769 F.3d 125, 132–133
[2d Cir2014]; Commonwealth v. Williams, 456 Mass. 857, 869
[2010]; compare Jones, 318 P3d at *6; Moore v. State, 295
Ga. 709, 713, 763 S.E.2d 670, 674 [2014]).
People v. Price,
supra.
The Court of Appeals went on to conclude the opinion by
explaining that
[i]n sum, the People failed to
demonstrate that the photograph was a fair and accurate representation of that
which it purported to depict. Nor—assuming adoption of the test urged by the
People (or some variation thereof)—did the People present sufficient evidence
to establish that the website belonged to, and was controlled by, defendant.
Thus, although the decision of whether to admit or preclude evidence generally
rests within the discretion of the trial court (see Patterson, 93
N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665), admission of the photograph
here lacked a proper foundation and, as such, constituted error as a matter of
law. Furthermore, on the facts of this case, we cannot conclude that the error
was harmless (see generally People v. Crimmins, 36 N.Y.2d 230,
242 [1975]).
Accordingly, the order of the Appellate
Division should be reversed and a new trial ordered.
Order reversed and a new trial ordered.
People v. Price,
supra.
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