In a recent appellate opinion, a New York court was asked to decide whether the prosecution had provided an adequate foundation during trial to authenticate a photograph that purportedly depicted the defendant brandishing a gun and money, which was obtained from a social media profile on the internet that allegedly belonged to the defendant. The background of the case is as follows. The defendant was convicted of two counts of robbery during a jury trial. A witness testified at trial regarding events surrounding the robbery. The witness stated that the incident occurred while he was making milk deliveries and that at one point he observed an individual holding a gun roughly one foot away from the victim’s chest. The victim and the individual brandishing the gun exchanged words, the victim threw a handful of cash from his pocket onto the ground, and the individual and his accomplice fled after collecting the money.
After the witness concluded this testimony, the prosecution informed the court that it intended to introduce a photograph located “on the internet” that purportedly showed the defendant holding a handgun. The prosecution indicated that the victim could identify the firearm in the internet photo because the same weapon was used during the robbery and that a detective could identify the defendant as the person who committed the robbery.
The defendant objected, stating that the prosecution failed to create an adequate foundation to authenticate the photograph as an accurate and fair depiction of the defendant holding the gun, or to show that the photograph had not been modified. The prosecution rebutted this assertion by stating that the foundation would be provided through proof that the picture was obtained from a public web page that included an internet profile name with the defendant’s surname and additional photographs depicting the defendant. The lower court ruled that the prosecution had provided an appropriate foundation and that the photograph could be admitted. The matter proceeded, and the defendant was ultimately found guilty on two counts of robbery.
The appellate court upheld the lower court’s ruling regarding the admissibility of the photograph, finding that it was relevant to establishing the identity of the gunman and that its probative value outweighed any potential prejudice to the defendant. The defendant appealed the matter again, and the high court overturned the lower court’s ruling, finding that the prosecution’s foundation was inadequate and that the photograph should not have been admitted into evidence. The court stated the longstanding rule regarding authentication of photographs, which requires that the picture “accurately represent[s] the subject matter depicted.” The court referred to the victim’s inability during trial to identify the handgun in the photograph as the handgun involved in the robbery. Additionally, the prosecution was unable to offer any other witnesses to testify that the photograph was a fair and accurate representation of the defendant or the gun used in the crime. Finally, the court noted that the prosecution’s attempt to connect the photograph to the defendant by arguing that the defendant owned the social media web page was too sparse to constitute a proper foundation. The court indicated that the prosecution should have offered evidence regarding whether the defendant was a known user of the account, whether he communicated with other individuals through the account, or whether the account could be traced through the defendant using electronic devices owned by him.
If you or someone in your family is the target of a criminal investigation or criminal case, the tenacious New York criminal defense attorneys at Tilem & Associates are standing by to help you protect your rights. Our seasoned team of legal professionals understands just how critical this situation is for you, and we can guide you through each phase of the legal process. We have handled a broad range of criminal defense matters, including robbery, gun crimes, and drug crimes. To schedule your free consultation, call us now at 877-377-8666 or contact us online to get started.
New York Appellate Court Upholds Conviction of Defendant in Assault Case Over Confrontation Clause Objection
New York Firearms Attorney Peter Tilem Named to USCCA Critical Response Team – NY Self-Defense Law
New York Gun Laws – High Capacity Magazines – Serious or Not?