A Photo Is Still a Photo, Even on Social Media

A recent case made headlines simply because it involved Instagram. Don’t be fooled by the hype—new technologies don’t always require new law. A photo is a photo regardless of where it appears, and its admissibility is based on the same law whether it’s a photo taken on a camera or one posted on the hottest new social media website.

Here’s the basic law: To be admissible as evidence, photos require authentication from a witness with personal knowledge (Evid C §1413) or circumstantial proof (Evid C §1410).

In People v Goldsmith (2014) 59 C4th 258, 268, which involved photos from a red-light traffic camera, the supreme court clarified the general principles guiding the admissibility of photographic evidence over an objection that the evidence hadn’t been properly authenticated:

A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted…[t]his foundation may—but need not be—supplied by the photographer or by a person who witnessed the event being recorded; in addition, authentication “may be supplied by other witness testimony, circumstantial evidence, content and location….”

Should this clear statement of the law be any different when the photo is found on a social media website? “No,” says the court in In re K.B. (July 20, 2015, A140960) 2015 Cal App Lexis 627. When faced with the argument that a photo taken from Instagram had to be authenticated by the photographer or someone who saw the photo being taken, the court applied the principles in Goldsmith and held they were properly authenticated by the testimony of investigating officers through various factors that “point to the authenticity and genuineness of the photographs”; a witness with personal knowledge of the photos being taken wasn’t needed.

So this means you can still use the evidence law you learned in law school in this time of evolving technology. And if you’ve forgotten any of that law or want guidance on how authentication has been handled in other cases, CEB has you covered with Jefferson’s California Evidence Benchbook, chaps 31 & 33, and Effective Introduction of Evidence in California, chap 11.

Other CEBblog™ posts you may find useful:

• From Website into Evidence
• How Do You Get Text Messages into Evidence: Authenticate, Authenticate, Authenticate
• Demonstrative Evidence: When You Want to Show and Tell

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