The Court of Appeals determined this issue was unobjectionable, and failure to object on such a matter cannot be considered ineffective assistance of counsel.
The Georgia Supreme Court recently denied certiorari for a defendant convicted of child molestation and public indecency, but the Court raised some interesting concerns about the variable nature of website content and how it would need to be authenticated or shown to be relevant at trial.
In Holzheuser v. State, the defendant appealed his convictions based on ineffective assistance of counsel at trial for failing to raise objections to digital images from pornography websites that were allowed into evidence as representative of the images that the defendant viewed on his mobile device which the State claimed were indicative of having a sexual interest in prepubescent girls. Specifically, the appellant contended that the State failed to authenticate the images, that the images were irrelevant, and that they should have been excluded under O.C.G.A. §24-4-403.
At the center of the defendant’s argument was that his trial attorney failed to provide effective assistance by not objecting to the images in question. However, the court reasoned that any such objection would be meritless.
Under O.C.G.A. §24-9-901, the party presenting evidence only needs to show that it “is what its proponent claims.” This evidentiary burden is met by testimony from someone with knowledge that the evidence is what it claims to be. In this case, the investigating detective testified that he personally visited the websites and retrieved images that were fair and accurate depictions of what appeared.
Therefore, since the prosecutor only claimed that the images were representative of the content on the website at a particular time (the day the detective visited the site) that was sufficient to deem the images as authentic. As a result, the Court of Appeals determined this issue was unobjectionable, and failure to object on such a matter cannot be considered ineffective assistance of counsel.
It should be noted that the images in question were retrieved after the detective searched the defendant’s phone and found certain web addresses and search terms in his internet history. This investigation led him to the various websites, where he retrieved images to use as examples of those that the defendant may have viewed.
While the Court of Appeals may have been correct in its assertions about permitting representative evidence to be introduced at trial, the Supreme Court’s decision here points out that website content is not static. For instance, a particular website may change or transfer domain ownership over time. As a result, someone could view vastly different content or be directed to an entirely different site at different times.
Although the detective’s testimony was sufficient to show that the images were representative of the websites he visited, their significance could be diminished when compared to the content the defendant viewed at the time he visited those sites.
This actually raises a potential objection when you consider how prejudicial it can be to show images of prepubescent girls in lingerie as evidence of what the defendant would have seen, but without any evidence that these images were present on the site when the defendant visited it. It could at least be confusing or misleading to the jury.
Specifically, under O.C.G.A. §24-4-403, “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
Ultimately, the Court upheld the trial court’s ruling that the images’ probative value demonstrated the type of content in the defendant’s phone and web activity, but did not make a determination regarding the significance of the fact that internet content is subject to change over time. This is due in large part to the fact that the petition for writ of certiorari only contended that his lawyer should have objected on authentication grounds, and not Rule 403
In the end, the petition for certiorari was denied, but attorneys and prosecutors should be aware of the issues noted here concerning the introduction of evidence of website content and should be prepared to overcome any objections based on the variable nature of the evidence.
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