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Name: People v. Ellis
Case #: A133343
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 02/28/2013
Subsequent History: Review granted: 6/12/13 (S209408)

Photographs are not hearsay evidence subject to the confrontation clause. At appellant’s trial on charges of lewd and lascivious acts with a child under the age of fourteen, and other sex offenses, the medical director of the center where the victim under went a SART (sexual assault and rape trauma) examination testified. Based on photographs of the minor taken during the examination, he rendered an opinion that the minor sustained a one- to four-day-old abrasion on her hymen that could only have been caused by penetration. The photographs, which were not taken by the director, were admitted as evidence. Appellant argued on appeal that the photographs were not authenticated and, further, violated his Sixth Amendment confrontation clause rights. Affirmed. To be admissible, photographs must be authenticated. Here, the directors’s testimony as custodian of records for the center adequately authenticated the photographs as accurately depicting what they purported to show. As to appellant’s second contention, the confrontation clause is not implicated unless there is evidence presented of a hearsay statement that is testimonial. Only people can generate hearsay; machines, animals, and chemical reactions cannot. (People v. Dungo (2012) 55 Cal.4th 608, 646-647.) The digital camera images presented in this case were demonstrative evidence, depicting what the camera saw, and were not hearsay. Any issues concerning such matters as to whether the image was subject to distortion based on lighting, focus, etc. are essentially a challenge to the authentication, which was adequately established by the director. Because the photographs were not out-of-court hearsay statements generated by a person, they did not implicate the confrontation clause and were properly admitted.