Just think of all the technological advancements in the last 30 years. From laptops and cellular phones, to wireless video cameras, just about every hour of our day we utilize some type of digital technology. Is there a street in New York City in which at least one wireless camera is not monitoring a residence or a business that can be accessed from some distant site from the owner’s laptop? With the transition from paper and other 20th century medium to a digitized format, a recurring question in litigation is does the new medium require different authentication procedures for admissibility in court? “What’s in a name? That which we call a rose by any other name would smell as sweet.”1 New evidence brings new authentication issues for the courts to decide as that technology becomes integrated in our lives. This article will address some of those authentication issues.
More than 80 years ago, before the atomic age or the information age, in a prelude to 21st Century technology advancements, an appellate court in Boyarsky v. G.A. Zimmerman,2 faced the question of the admissibility of that day’s new technology, known then as “moving pictures,” later to be known as motion pictures. In Boyarsky, the plaintiff sued for severe head injuries he allegedly suffered while working as a laborer on a construction site. He claimed he had been struck by a metal bolt dropped from a work platform 35 feet above him, and that as a result of the injury he was totally disabled. Eleven months after the accident, before the commencement of the trial, the corporate defendant conducted surveillance of the plaintiff and obtained “moving pictures” of him walking along a public street clearly contrary to his total disability claim. At trial, the court refused to admit the moving pictures, and on appeal the appellate court found the lower court’s ruling was reversible error. In determining that the moving pictures were admissible, the appellate court found that such evidence was admissible with a proper foundation, and noted that if there “is any exaggeration made by it, it may be pointed out by the court, or the moving picture wholly rejected.” Moving pictures, the court opined, had become “so general that it may be necessary in the near future to frequently permit their introduction in evidence.”3 Thus the moving picture was admissible provided the requisite precautions by the trial court were applied and exercised in the trial court’s discretion.4
