Internet services such as Google Street View (“Street View”) and Google Maps offer litigants a new realm of discovery resources that did not exist before. These images enable a party to compare images of a location that may have been taken years apart from each other. Although there is some guidance as to the admissibility of these Street View images, uncertainty still exists as to the situations where these images are admissible.
In Illinois, such Street View images may be admissible as evidence through judicial notice. Per Bouvier Law Dictionary, “Judicial notice is the recognition by a court of a fact that is widely known and not subject to any reasonable dispute. Judicial notice is governed by the Federal Rules of Evidence 201 and the corresponding state rule in state rules of evidence.” In Illinois, courts will accept evidence without a requisite foundation, so long as the evidence is an indisputable fact. Ill. R. Evid. 901(a). In People v. Clark, the trial court found the defendant guilty of possession with intent to deliver between one and fifteen grams of heroin within 1,000 feet of a public park. 406 Ill. App. 3d 622, 623 (2d Dist. 2010). The main issue upon appeal was if the defendant was in fact within 1,000 feet of a public park before being chased and apprehended by police. Id. On appeal, the state submitted a Google Map image of the surrounding area. Id. In this case, the appellate court notes “A judicially noticed fact must be one not subject to reasonable dispute, meaning that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Id at 632. As such, the appellate court did take judicial notice of the Google Map image, but “only for the purpose of understanding the statements made at trial by the witness and by the trial court.” Id. at 634.
In Zameer v. City of Chicago, the plaintiff files a personal injury lawsuit against the city of Chicago, alleging the sidewalk surface was uneven. 994 N.E.2d 657 (1st Dist. 2013). The plaintiff in this case claims that the city of Chicago failed to maintain and repair the sidewalk, which proximately caused his trip-and-fall injury. Id. During discovery, the plaintiff produces three Street View images that were obtained and downloaded from the internet. Id. The importance of these images is that they allegedly show that the sidewalk has been uneven for many years prior to the plaintiff’s accident. Id. As such, if the court deems the images admissible, the photographs can prove that the city had constructive notice of the uneven sidewalk. Id. In turn, the city would have had enough time to even out the surface or place adequate warnings prior to the plaintiff’s accident. Id.
The issue in this case is whether internet-based or satellite-based images are recognized by the Illinois courts as admissible evidence. The key distinction in this case is if the Street View image is offered to establish the location of the sidewalk or if the Street View images are meant to show the condition of the sidewalk. If the images are offered to establish the location of the sidewalk, then these images demonstrate facts that can be verified. Verified facts can then be used to establish the sidewalk location with certainty. However, if the images are meant to show the condition of the sidewalk, then what is depicted by the images may not be indisputable. For example, some witnesses looking at the photos may offer different opinions if the sidewalk is uneven or not. In this instance, judicial notice will not be granted.
Even if judicial notice is not granted, Street view images and the like may still be admitted if the requirements of Illinois Rule of Evidence 901(a). Specifically, Rule 901(a) states “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a). There are several requirements for the proper admission of Street View images. Johnson v. Bailey, 967 N.E.2d 961, 965 (3d Dist. 2012). First, the image must be true of what it implies to portray. Id. Second, the relevant object in the photograph must be substantially the same condition it was in at the time of the accident. Id.
Lastly, these Street View images may be properly admitted as evidence via the “silent witness” theory. Under this theory, “a witness need not testify to the accuracy of the image depicted in the image if the accuracy of the process that produced the evidence is established with an adequate foundation.” People v. Taylor, 956 N.E.2d. 431, 438-41 (2011). In the sidewalk-accident case in Zameer, the plaintiff must provide a witness or affidavit describing the process of creating the images. Specifically, there must be testimony that the images were taken, preserved, and transmitted to the plaintiff’s computer. Without such testimony, the silent witness theory will not be available to establish the necessary foundation to admit the Street View images.
As new technology continues to advance and new services are made available, it is important to make note of all available resources. Although there is some caselaw in Illinois that will help guide practitioners in the admissibility of Street View images, there is still much uncertainty about when these images are admissible.