A Ninth Circuit Panel held that a GPS location tack generated out of court on a Google-Maps satellite image is not hearsay under the Federal Rules of Evidence. In an immigration prosecution, the location of the arrest was an issue; the arresting officer had recorded her GPS position at the time. The map was generated out of court, so the defense could not cross-examine anyone about its accuracy. It wasn’t hearsay under Rule 801(a), because maps make no “assertion,” and it is not the statement of a “person.” The Court concluded it was a “machine statement” from Google algorithms, which the Panel held were subject to judicial notice under Rule 201, as a source beyond reasonable question. The real issue, wrote Judge Alex Kozinski, was one of authentication under Rule 901 – an objection not raised at trial or on appeal. Of greater concern, though, was how the Court reached its conclusion. First, recall that the Court’s judicial-notice conclusion about Google’s accuracy rests upon the a priori assumption that the map-tack in fact was a “machine statement” by Google Maps. But the Court’s opinion admits: “Indeed, there was no testimony regarding the origin of the satellite image or the tack, and the record doesn’t reflect whether the tack was automatically generated or manually placed and labeled.” And “Because there was no evidence at trial as to how the tack and its label were put on the satellite image, we must determine, if we can, whether the tack was computer-generated or placed manually.” In a feat of circular reasoning, the Court held the map of unknown provenance was admissible because “we can take judicial notice of the fact that the tack was automatically generated by the Google Earth program” because the Panel’s out-of-court experiment produced (what appeared to be) “an identical tack to the one shown” on the trial exhibit. That conclusion leaves wholly un-addressed whether the trial-exhibit tack was machine-generated (no hearsay) or placed in person (hearsay). And if your liberty is at stake, it seems perilously close to “We looked it up on the internet, so it must be true.” Both issues (hearsay and authenticity) easily could have resolved by foundational testimony about how the map was made and the reliability of the machine statement (Google Maps and GPS). Of course, the Government could have had the arresting agent simply plug the coordinates in live at trial, generating and printing the Google Maps machine-statement on the spot. Maybe more simply still, the Government could have done the exercise in Court “old school,” by using a properly-scaled map with coordinates to plot the position. Indeed, the “old school” method of plotting the latitude and longitude live at trial would have yielded a more secure basis for judicial notice.
The litigation take-aways:
- Deal with it before trial by stipulation or in limine.
- Lay the proper foundation or plot the position live in Court (whether with a GPS chart-plotter or an actual chart and parallel rules).
- Object to both hearsay and authenticity (“it was made out of court and there’s no evidence of who, how, or when”)
The opinion, United States v. Lizarraga-Tirado, No. 13-10530 (9th Cir. June 18, 2015) can be found here: http://www.ca9.uscourts.gov/opinions/ Thomas K. Potter, III (email@example.com) still plots his dead-reckoning positions manually on paper charts when sailing offshore, as a back-up to a GPS chart plotter. He is a partner in the Securities Litigation Practice Group at Burr & Forman, LLP. Resident in the Nashville office, Tom is licensed in Tennessee, Texas and Louisiana. He has over 29 years’ experience representing financial institutions in litigation, regulatory and compliance matters. See attorney profile. © 2015 by Thomas K. Potter, III (all rights reserved).
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