Facts: Mother and Father are the never-married parents of two children.
Mother left the parties’ home after discovering that Father, a truck driver, had been having affairs while traveling for work.
Father petitioned to establish parentage and parenting time.
The trial court ordered a temporary parenting schedule. Mother repeatedly violated it. Father filed several motions for contempt.
The case was heard in December 2021, and the trial court entered a parenting plan awarding Father 120 days of parenting time. Mother was also found in contempt and ordered to pay $500 toward Father’s attorney’s fees.
In February 2022, the litigation resumed with Mother seeking to limit Father’s parenting time and Father asking that Mother be held in contempt for failing to follow the court-ordered schedule.
In March 2022, those matters were tried. Mother testified she recently discovered an old cell phone belonging to Father. Over the objections of Father’s counsel, Mother testified that she found what she considered to be troubling pornographic images on the phone and that she decided to have the phone forensically analyzed. She took the phone to a “data analysis place” that discovered additional images and Internet history from the phone. Mother testified that “whatever was recovered from the phone they dumped onto a USB drive and gave both back to me. I put the USB drive in my laptop and went through it.”
Although Father’s counsel objected that Mother could not testify as to what someone else extracted from the old phone, the trial court overruled the objections and let Mother testify as to what she saw. Mother testified that the pornographic images found on the phone involved homosexual activity and minors. Father admitted to being bisexual and looking at some images on the phone but vehemently denied that any of the pictures involved minors and denied that he had ever solicited anything from minors online. Father also testified that Mother had continued denying Father parenting time, even when Father traveled to Florida to see the children.
In May 2022, the trial court kept the parenting schedule unchanged except to require that Father’s parenting time be supervised by either his mother or sister, requiring Father to have a psychosexual evaluation and requiring Mother to submit to a psychological evaluation.
Father continued to file motions for contempt for Mother’s failure to follow the parenting plan. Mother again filed a petition to change the parenting plan.
In April and May 2023, the trial court heard all pending matters. The trial court left the current parenting schedule in place but awarded Father 40 days to make up parenting time that Mother withheld in 2022. Mother was also found in contempt on eight counts and ordered her to pay $2500 toward Father’s attorney’s fees.
Father appealed.
On Appeal: The Court of Appeals affirmed the trial court.
While several other issues were discussed on appeal, this post will only address the admissibility of the photographs Mother offered into evidence.
Tennessee’s rules of evidence define “hearsay” as an out-of-court statement offered in court to prove the truth of the matter asserted. Hearsay is not admissible unless it fits one of the exceptions in the rules of evidence. The hearsay rule tries to ensure the reliability and trustworthiness of statements sought to be admitted into evidence.
Authentication of evidence is a separate issue. Authentication or identification is a pre-condition of admissibility that is satisfied by evidence to support a finding by the judge that the matter in question is what its proponent claims it is.
Photographs must be verified and authenticated by a witness with knowledge of the facts before being admitted into evidence. Generally, a photograph can be authenticated by proof it depicts what it is claimed to depict. It is unnecessary that the witness through whom a photo is being introduced was also the photographer who took the photo. Any person familiar with the place or item photographed can authenticate the picture by testifying that it is a true and accurate depiction of the location or item at issue in the case.
The Court agreed with Father that the trial court erred in admitting the photographs:
The photographs were not properly authenticated, and the testimony regarding where the pictures came from was inadmissible hearsay. As to authentication, no witnesses at trial could confirm, with first-hand knowledge, where the pictures came from. Mother testified that she got the pictures from a data analysis company that placed the pictures on a USB drive for her. No one from this company testified at trial, and neither Mother nor [a law enforcement officer who testified] could confirm that the pictures were taken from Father’s old phone. In fact, both Mother and [the law enforcement officer] testified that when they examined Father’s phone, the relevant pictures were not on it. [The law enforcement officer] also testified that Father was not charged criminally because she could not link him definitively to anything found on the USB. Accordingly, no one familiar with the places and things depicted could confirm the pictures’ authenticity at trial, nor could anyone testify as to their origin. Moreover, while it is undisputed that Father used the phone at one point in time, it is also undisputed that [the] phone has not been in Father’s possession for several years, as Mother took the phone with her when she left Tennessee for Florida in 2021.
In that vein, Mother testified that she learned from the data analysis company that the pictures on the USB were extracted from Father’s phone through forensic analysis. This testimony, however, is hearsay because it is an out-of-court statement offered for the truth of the matter asserted, specifically, it is a statement by the data analysis company that the pictures were found on Father’s phone. Although Mother’s counsel asserted some hearsay exceptions in response to Father’s objections at trial, this statement from the data analysis company was clearly offered for its truth, as the cornerstone of Mother’s request for a modification was Father’s alleged proclivities.
Consequently, the trial court erred in admitting [the photographs]. These photographs were not properly authenticated, and the testimony regarding where the pictures came from was inadmissible hearsay. Thus, the trial court reached its conclusions about the pictures based on a clearly erroneous assessment of the proof, thereby abusing its discretion.
Nonetheless, we ultimately conclude that the error was harmless and did not affect the outcome of the trial. Father’s sexual orientation has been an undisputed fact since the parties went before the trial court in December of 2021 to determine their initial custody arrangement. From the very beginning of this case, Mother has lodged accusations against Father and has accused him of letting his sexual orientation affect his parenting, none of which has been borne out by the evidence. On the record before us, the trial court has never treated Father’s orientation as a bar to custody, even stating in written orders that Father’s orientation is not a bar to custody…. The images introduced in the April and May 2023 hearings did not sway the trial court’s opinion of Father, given that the trial court determined there was no material change in circumstances warranting a change in custody, and that Father should still enjoy robust parenting time with the children.
We are unable to determine how the outcome of this case would’ve been different but for the photos at issue. Accordingly, any error by the trial court was harmless.
The Court of Appeals affirmed the trial court’s decision to keep the parenting plan as-is.
Source: Carter v Fay (Tennessee Court of Appeals, Eastern Section, December 11, 2024).
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