Google Earth Photos Help Show Proximity to Crime Scene in Burglary Case

Charles Toutant

New Jersey Law Journal

Lawyers in a New Jersey burglary case seem to have stumbled upon a new terrain for photographic evidence: Google Earth.

An appeals court on Monday found no error in allowing prosecutors to use satellite photos from the global mapping service to help show the perpetrator's proximity to the crime scenes -- specifically, by pinpointing the location of cellular towers near his home and the burgled residence.

Though the defense lawyers argued the evidence was not authenticated, the judge said "we cannot conclude this purported error was capable of producing an unjust result, particularly when the photographs were not offered as substantive proof of the distances between the residences and the cell towers but merely as illustrative aids to the testimony."

The case, in State in the Interest of J.B., a minor , A-2228-08, shows the potential for wider trial use of Google Earth images, even though the panel found it unnecessary to decide what sort of authentication would be required if they were to be offered as substantive evidence in and of themselves.

The issue was the location of the accused juvenile delinquent, known as J.B. in court papers, on the evening of the burglary. He claimed he was riding around with two friends but returned home at 11 p.m. and did not go out again. J.B.'s mother also testified that he arrived home at 11 and remained there for the rest of the night.

J.B.'s two friends, Clinton Mohn and Anthony Williams, 18 at the time, testified that they dropped off J.B. at his home at 11 p.m. but the group reassembled 45 minutes later. Mohn and Williams testified that at 12:30 a.m., the group broke into the house of another friend, Alex Witzl, and stole a sword collection, a laptop computer, a jar of coins and other items. Mohn and Williams testified that they returned J.B. to his home at around 3 a.m.

During a bench trial in Sussex County, N.J., the prosecution sought to defeat J.B.'s alibi with testimony from a representative from Verizon Wireless, to the effect that several calls made with J.B.'s cell phone around the time of the burglary went through a tower on Continental Drive in Mount Olive, near Witzl's home. If J.B. had made the calls from his own home, they would have gone through a tower on Bridget Way in Byram, the representative said.

To establish that J.B.'s home was closer to the Bridget tower than the Continental tower, the prosecution presented a Google Earth photo marked with the location of both Witzl's and J.B.'s homes.

The defense objected, saying Google Earth's accuracy had not been established under N.J. Rule of Evidence 901. Superior Court Judge James Farber found the photo inadmissible to provedistance, saying that "although Google Earth is a tool that a lot of people are using ... I don't know that [its] [reliability has] been established at this point."

Later, a detective testified that his police car odometer showed that the Continental tower was closer to the crime scene and the Bridget tower was closer to J.B.'s home.

To show the detective's testimony was accurate, the prosecutor showed him an atlas map with markings at the towers' locationss. The prosecutor then showed him two Google photos -- one with the location of the crime scene and the Continental tower, and the other with the estimated locations of J.B.'s home, the crime scene and the two cell towers.

Defense counsel again objected, but this time Farber overruled him, saying, "this is just an updated manner of getting the same information" as the atlas. He said the defense could challenge the photos' validity through cross examination or by bringing in an atlas map to show the state was incorrect.

Farber found J.B. guilty of acts which, if committed by an adult, would constitute third-degree burglary, third-degree theft and trafficking in stolen property.

Among other issues raised on appeal, J.B's lawyer said "there was no testimony that the Google Earth images were accurate reproductions of what they purported to represent at the time of the incident in question, or that the purported representations had not changed between the time of the incident and the taking of the images."

Appellate Judges Mary Catherine Cuff, Clarkson Fisher and Douglas Fasciale said Farber did not abuse the broad discretion trial courts enjoy in admitting a replica or and illustration, usually depending on whether it sufficiently replicates what is it supposed to.

Moreover, the issue of authentication was rendered moot when defense counsel conceded the state had proven that J.B.'s phone was at the crime scene. "As a result, the only disputed fact to be resolved regarding the cellphone was not its location at the time of the burglary but the location of the juvenile at that time," the panel said. "This required that the judge determine whether the juvenile's claim that he lent his cellphone to Mohn that night was credible. The judge found the juvenile was not credible for numerous good reasons; that finding is entitled to our deference."

Assistant Sussex County Prosecutor Jerome Neidhardt, representing the state, said court rules and case law provide adequate guidance on use of Google Earth images in evidence.

Associate Professor Sandra Gavin of Rutgers Law School-Camden, who who teaches evidence, predicts that Web utilities like Google Earth and Mapquest will not be difficult to authenticate. She says they will follow the path of e-mail evidence, which courts initially were reluctant to find e-mail authentic or reliable but later embraced as the technology became more familiar.

J.B.'s lawyer, Morristown solo John Albright, says he has not discussed the ruling with his client and cannot say if he will appeal.