Google Earth's digital tack, used to show location, wasn't hearsay, 9th Circuit rules
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A “digital tack” on Google Earth used to pinpoint the location of an arrest isn’t an inadmissible statement governed by hearsay rules, a federal appeals court has ruled.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled in the case of a defendant, Paciano Lizarraga-Tirado, who claimed he was on the Mexican side of the border when he was arrested by Border Patrol agents for illegal re-entry into the United States, report the Wall Street Journal Law Blog and IDG News Service.
An arresting agent recorded the coordinates of the arrest with a GPS device. At trial, prosecutors introduced evidence of the location by entering the GPS coordinates into Google Earth, creating a digital tack on Google Earth’s satellite image. The tack was clearly north of the border.
The appeals court considered Lizarraga-Tirado’s objection under the hearsay rule, which generally bars out-of-court statements to prove the truth of the matter asserted. The rule defines a statement as a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
A satellite image, absent any markers, makes no assertion and isn’t hearsay, the court said in an opinion (PDF) by Judge Alex Kozinski. Because the tack was computer-generated rather than placed manually and labeled, it isn’t an assertion made by a person and isn’t hearsay, the court said.
“Though a person types in the GPS coordinates,” Kozinski wrote, “he has no role in figuring out where the tack will be placed. The real work is done by the computer program itself.”
Machine statements do raise evidentiary concerns, Kozinski said, but they should be addressed by the rules of authentication, not hearsay. A litigant seeking admission of Google Earth evidence over an objection would have to establish its reliability and accuracy, perhaps by testimony from a Google Earth programmer or perhaps by judicial notice, Kozinski said. The defendant in the case before the court had not raised an authentication objection.
