Defending Your Case From the Sky
Using Aerial Images To Enliven Your Case
Sunday, August 26, 2018
by: Tyler Weaver

Section: Secondary Article


Author Bio

Tyler Weaver can be reached at tyler.weaver@cogentlegal.com or 206-816-5128. Before joining Cogent Legal as the Executive Director of the Seattle office, he was a partner at Hagens Berman Sobol Shapiro LLP in Seattle, where he oversaw the day-to-day litigation of complex cases in a wide array of subject areas. Tyler brings more than 16 years of litigation experience to Cogent and is uniquely qualified to assist in crafting a persuasive narrative punctuated by cogent visuals.
In the last few years, it has become relatively cheap and easy for litigators to obtain high-quality aerial images to use in their cases. 
Current and historical satellite images are now freely available on the internet and drones can capture images that were once either impossible to acquire or impossibly expensive to obtain
  
With a growing ease of access, it is time to take a moment to explore why and when aerial images may help your client’s case, how to acquire aerial images, and how to properly admit this evidence in court.         

Why aerial images?
Aerial images, in the right case, can be a powerful way to convey key information. Certain key aspects of a case are frequently more easily observed and explained from an overhead angle than from ground level.  If your case involves an incident that occurred outside or an external condition that might be observed from above, consider whether aerial images are available that could bolster your argument (or potentially expose problems with it).

Depending on the circumstances, you may need to capture or retrieve aerial images at the very start of a case, before a scene changes.
Some cases obviously bring aerial images to mind, most typically cases where there is a condition that cannot be fully appreciated without an overhead angle.  Prime examples would include a sinkhole and its proximity to structures; the aftermath of a landslide; the placement of structures accused of encroaching on a property line; or the location of a toxic waste site in relation to a claimed cluster of illnesses.

Slightly less obvious cases are those where an aerial image might be the best way to prove an issue even though the case does not require proof a particular condition.  For example, in a personal injury case, an aerial image might be the most effective means of demonstrating how particular streets are laid out.  A municipality recently used aerial imagines to demonstrate how long their police had to chase a suspect before they were finally able to stop and subdue him.

Some cases also benefit from the use of historical aerial images.  A before-and-after comparison is often compelling, as the news demonstrates regularly with aerial images before and after a wildfire, or before and after the Kilauea lava flows renewed.  Litigation examples include landslides allegedly caused by commercial activity; an aerial image might demonstrate that the activity did or did not happen as alleged.  Similarly, if you represent a client who is trying to prove that it did not have notice of a dangerous condition on its property, you might be able to find an aerial image that proves your point.

So how do I get find aerial images?
If you think an aerial image might help your case, there are some relatively inexpensive ways to access those images.  Most people acquire aerial images from either drones or Google Earth.  I will focus on these two sources of images, as they are the most commonly used.

Drone cameras are an indispensable tool for capturing high-quality images from an overhead angle. Because they are small, agile, and able to be flown at varying heights according to pre-set programs, drones can capture images that you could not capture by any other method.  Depending on the type of data you capture, a modeler can use them to create a 3-D image or even an animation.

Drones have limitations.  The proliferation of drones and occasional irresponsible uses have led to attempts to limit their operation so there may be restrictions on when and where they can fly.  While drones are effective, they can only capture the present.  If you need historical images, you will have to look elsewhere.

Google Earth is one place to look for historical images.  Google Earth is an enormous database of high-resolution satellite images of, essentially, the entire world.  What you may not know is that Google Earth contains not only photos that Google satellites have captured in recent years, it also contains (for some locations) historical photos that predate Google by years or decades.  Google also makes these images generally available for non-commercial use, provided there is proper attribution as to the source of the images.  As of the writing of this article, Google Earth permits the use of its images in “research papers, internal reports, presentations, proposals, and other related professional documents” provided that certain guidelines are met, such as proper attribution.

In addition, since Google takes its images from satellites, flight restrictions are irrelevant.  There are some highly sensitive locations that they are required to blur, but those are relatively few and very far between.

The quality of Google Earth’s images is, for the most part, incredible given that they are taken from space.  However, the images are typically grainier than drone footage or an SLR (single lens reflex) camera, and you are necessarily limited to the angles and images that Google Earth has available.

That said, Google Earth is an inexpensive and powerful way to obtain simple aerial images (such as street layouts).  It can also help you decide whether aerial images are helpful, and whether you should try to obtain a higher-quality image of an area, or perhaps have someone do a clean drawing or diagram based on Google Earth images.

Will I be able to use my aerial images in court?
If you decide aerial images are going to form a part of your case, you should have in mind from an early stage how you will lay the foundation needed to get the images admitted at trial.  This is true of any demonstrative exhibit you use, whether it is a photograph, an animation, a chart, or a diagram.  There are some unique considerations when the photograph is taken from hundreds of feet in the air or from space.

In Washington courts, demonstrative exhibits are generally favored if they are more probative than prejudicial.  State v. Finch, 975 P.2d 967, 984 (Wash. 1999).  You must show the demonstrative exhibit is generally accurate and depicts what it purports to depict.  This is typically very easy with a ground-level photograph or animation, which can be authenticated by a witness who can testify that the image is an accurate representation of what it depicts.  See, e.g., State v. Sapp, 332 P.3d 1058, 1061 (Wash. App. 2014).  This becomes more complicated when the image is taken from the sky.  If the other side refuses to stipulate or admit that the image you want to use is accurate, you’ll have to find another way.  The Ninth Circuit has given some guidance on that issue in the leading case on the matter, U.S. v. Lizarraga-Tirado, 789 F.3d 1007 (9th Cir. 2015).  In that case, the primary issue was whether a Google Earth image with a GPS-located tack was hearsay, it was not, but the court explained how to authenticate such images:

When faced with an authentication objection, the proponent of Google-Earth-generated evidence would have to establish Google Earth's reliability and accuracy. That burden could be met, for example, with testimony from a Google Earth programmer or a witness who frequently works with and relies on the program. It could also be met through judicial notice of the program's reliability, as the Advisory Committee Notes [to FRE 901] specifically contemplate. 

Id. at 1110 (citations omitted).  You may be able to use an expert to testify about the accuracy of the image especially if the expert typically uses Google Earth or happens to have taken ground measurements that confirm the accuracy of the aerial image.  You may also be able to get what you need to authenticate the image from a pretrial, third-party subpoena of Google that will make calling a Google witness unnecessary.

For a drone image, Google engineers and judicial notice will not be much help, but you have much greater flexibility in calling either the person who captured the drone image or someone who could discuss the overall reliability of the technology used to create the images.

The precise methods you will want to use to authenticate your aerial image will vary from case to case, but it should not be a major issue if you think about it in advance and plan your strategy accordingly.