The Ninth Circuit Court of Appeals is one of the more progressive, technologically and socially, federal courts. Because of its close proximity to Silicon Valley, the Ninth Circuit has a pretty good grasp on technological challenges.
The case, United States v. Passiano Lizzaraga-Tirado (13-10530), involved a Mexican national who was arrested by US Customs and Border Patrol agents for illegally entering the United States. The Mexican national alleged that he was on the Mexico side of the border and the agents crossed into Mexico to apprehend him. (Interestingly, the Mexican national admits he was waiting for smuggling instructions from a “Coyote.”) The border agents testified that they marked their location using a handheld GPS unit. The government introduced a Google Earth image with the apprehension location marked.
The Border Patrol agent who recorded the coordinates testified that the Google Earth image matched the ones taken from the handheld unit. The trial court overruled a hearsay objection and admitted the image.
The Ninth Circuit followed the reasoning for allowing photographs — they merely capture a scene as it existed and don’t make any assertions — to find that Google Earth images alone are not hearsay. (This is the correct reasoning, which all courts should adopt.)
The Court moved on to examine the “tack” — the GPS marking. The Court reasoned that manually placed markings are hearsay — the manual marks make assertions. The Court analogized the manual Google Earth marking as something similar to an “X” on a treasure map:
This is like drawing an X on a paper map and labeling it “hidden treasure.” That would be an assertion by the person drawing the X that treasure can be found at that location.
Manual markings, the Court reasoned, could be incorrect, and “thereby misstate the true location of the tack.”
The possibility of mistaken identity seems to be the case in Passiano, but the Court gets around the conundrum quite easily:
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 computergenerated or placed manually. Fortunately, we can take judicial notice of the fact that the tack was automatically generated by the Google Earth program. By looking to “sources whose accuracy cannot reasonably be questioned”—here, the program—we can “accurately and readily determine” that the tack was placed automatically. See Fed. R. Evid. 201(b). Specifically, we can access Google Earth and type in the GPS coordinates, and have done so, which results in an identical tack to the one shown on the satellite image admitted at trial.
Voila. Problem solved.
A tack placed by the Google Earth program and automatically labeled with GPS coordinates isn’t hearsay. The hearsay rule applies only to out-of-court statements, and it defines a statement as “a person’s oral assertion, written assertion, or nonverbal conduct.” Fed. R. Evid. 801(a) (emphasis added).
Here, the relevant assertion isn’t made by a person; it’s made by the Google Earth program. Though a person types in the GPS coordinates, he has no role in figuring out where the tack will be placed. The real work is done by the computer program itself. The program analyzes the GPS coordinates and, without any human intervention, places a labeled tack on the satellite image. Because the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there’s no statement as defined by the hearsay rule.
Hearsay, as any second year law student learns, is one of the most confusing rules of law. (And this confusion also merits the consideration for its abolition.)
The Ninth Circuit isn’t the first court to address these types of hearsay issues — See United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008); United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007); United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) cited in the Ninth Circuit opinion — but it’s one of the more recent courts to tackle this issue in the digital age.
I applaud this decision, and hope that we’ll see similar application of the reasoning across state and federal jurisdiction.