On June 18, 2015, the U.S. Ninth Circuit Court of Appeals decided that satellite images from Google Earth can be allowed as evidence in federal criminal cases.
A three-judge court panel ruled that map images from Google Earth and similar computer-generated content can be used as evidence in criminal cases since such content is not based on personal statements and does not make any human assertions that would violate the hearsay rule.
This case involves defendant Paciano Lizarraga-Tirado, who was arrested on January 17, 2003 by two border patrol agents near the U.S. / Mexico border.
At the time of his arrest, Lizarraga-Tirado was charged with illegal reentry into the United States after having been deported previously.
At his trial Lizarraga-Tirado denied that he had entered the United States and testified that U.S. border agents had unintentionally crossed the border and arrested him by mistake in Mexico.
However, one of the border agents had used a portable GPS device to record the latitude and longitude coordinates of their location when Lizarraga-Tirado was arrested.
These GPS coordinates were entered into Google Earth to produce a computer-generated satellite image along with a digital location tack, which showed that the defendant had, in fact, been arrested north of the U.S. / Mexico border in an area located in Arizona.
This satellite image along with the digital location tack was presented as evidence during the trial, which helped to convict Lizarrago-Tirado.
In appealing the conviction, Lizarraga-Tirado’s lawyer, Roger H. Sigal, claimed that the Google Earth satellite image as well as the program’s location tack and coordinates amounted to hearsay and, therefore, should not have been permitted during his trial.
However, the judges disagreed.
In their ruling, written by Judge Alex Kozinski, the court stated:
A tack placed by the Google Earth program and automatically tagged 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.”
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.
In their opinion, the Ninth Circuit Court of Appeals cited decisions from numerous other federal courts that have concluded that data generated from computers or other machines isn’t hearsay.
Some of the court cases cited in this opinion include: United States v. Lamons ( 11th Cir. 2008 ); United States v. Moon ( 7th Cir. 2008 ); United States v. Washington ( 4th Cir. 2007 ); United States v. Hamilton ( 10th Cir. 2005 ) and United States v. Khorozian ( 3d Cir. 2003 ).
The court’s written opinion noted that if the location tack and GPS coordinates had been manually placed on the Google Earth satellite image by a person, it would have been a classic violation of the hearsay rule.
The decision went on to recognize that machine statements can still raise other evidentiary concerns because of human tampering; malfunctioning or by producing inconsistent results.
However, the court opined that these concerns are handled by the rules of authentication and not the hearsay rule.
The defendant did not cite any authentication objections at trial or on appeal.
The court of appeals ultimately affirmed the original trial conviction of Lizarraga-Tirado.
You can read the entire opinion at http://law.justia.com/cases/federal/appellate-courts/ca9/13-10530/13-10530-2015-06-18.html.