Photos on a Cell Phone

Jay Leiderman
By: Jay Leiderman
July 30 2015

The prosecution sufficiently authenticated the incriminating photos on a cell phone even without testimony from anyone in the photos or present when they were taken. 

The minor argued the trial court erred by admitting incriminating photographs extracted from his cell phone [ photos on a cell phone ] because the photos were not properly authenticated – none of the subjects in the photos testified. However, the photos were properly authenticated by the investigating officers. The photos matched those on defendant’s Instagram account. And when he was arrested, he was wearing the same clothes and was in the same location shown in the photos, and he was with the other people in the photos.
In Re K.B. 238 Cal.App.4th 989 (2015)

photos on a cell phone
Stingrays – fake cell phone towers

Admission of Incriminating Photographs Extracted from Cell Phone

Over appellant’s objection, the prosecution entered into evidence photographs showing appellant, another juvenile, D.H., and Mendez posing with two handguns. Appellant contends that the trial court erred in admitting the photographs over his objection on the ground they were not properly authenticated because “none of the subjects appearing in the images testified, nor did anyone who was present at the time the photos were taken. Accordingly, there was no witness present at the time the images were created to establish that the [photographs] accurately depicted what they purported to depict — appellant and his co-minor, D.H., in possession of firearms.”

The general principles guiding the admissibility of photographic evidence over an objection that the evidence has not been properly authenticated were recently addressed by our Supreme Court in Goldsmith, supra, 59 Cal.4th 258.[4] “A photograph or video recording is typically authenticated by 995*995 showing it is a fair and accurate representation of the scene depicted. [Citations.]” (Id. at pp. 267-268.) This 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” and “also may be established `by any other means provided by law’ ([Evid. Code,] § 1400), including a statutory presumption. [Citation.]” (Goldsmith, at p. 268.)