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Florida Third DCA rules that Google Maps photo of sidewalk at issue in slip-and-fall case was not admissible without supporting testimony regarding the date of the photo and equipment used

On October 16, 2019, in City of Miami v. Kho, No. 3D18-2369, the Florida Third DCA reversed a trial court’s denial of a directed verdict to the defendant in a slip-and-fall case, finding that the only evidence of the defendant’s actual or constructive knowledge of the defective condition of the sidewalk at issue was based on the improper admission of a date stamped Google Maps photo. The Third DCA observed that there are only two methods of authenticating photographic evidence. First, the “pictorial testimony” method requires a witness with personal knowledge to testify that the image fairly and accurately depicts a scene. Second, the “silent witness” method requires proof of the reliability of the process which produced the tape or photo.” The court cited Wagner v. State, 707 So. 2d 827, 831 (Fla. 1st DCA 1998), for the principle that a trial judge may admit a photograph under the silent witness method after considering the following factors: (1) evidence establishing the time and date of the photographic evidence; (2) any evidence of editing or tampering; (3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product; (4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and (5) testimony identifying the relevant participants depicted in the photographic evidence. In the instant case, the Third DCA observed that the plaintiff had not complied with either method, instead simply relying on a witness’ testimony that the condition of the sidewalk in the Google Maps photo, dated November 2010, was substantially similar to a photograph taken after the accident.