Tuesday, January 18, 2011

A picture can say a thousand words, and none of them are hearsay

Today in Bynum v. Com., the Court of Appeals in an published opinion by Judge Petty, joined by Judges Elder and Beales, held that the trial court in a case where the defendant was convicted of possessing drugs within 1,000 feet of a school did not err in admitting over the defendant's hearsay objection the aerial photograph used by police to prove the defendant's proximity to the school.

The Court reasoned, in part, that photographs are not hearsay because there is no declarant:

"As with a caller ID and a call trap, there simply is no out-of-court declarant involved in this photograph. Officer Johnson used an aerial photograph of the Brighton Elementary School property and surrounding area to measure the distance between the school property boundary and the location where Bynum was observed with heroin and arrested. An aerial photograph of a geographic area does not contain 'simply the repetition of prior recorded human input or observation.' Tatum, 17 Va. App. at 588, 440 S.E.2d at 135. It is not the recordation or compilation of another human being’s assertions; it is not a communication of input from another person. Rather, it is simply a technological reproduction of an existing reality. Cf. Penny, 6 Va. App. at 498, 370 S.E.2d at 317 ('The scientific advances of modern technology have enabled the call trap device to make and record the occurrence of electronic events.'). As such, its 'reliability does not depend on an out-of-court declarant’s veracity or perceptive abilities.'"