Case o' The Week: Ninth Maps Out New Hearsay Rules - Lizarraga-Tirado, Hearsay, and Machine-Generated Evidence

Consider these tacks with coordinates on a Google Earth map.

  Notice that one tack is north of the yellow U.S. - Mexico border, and one is south? 

  One of these two tacks isn't hearsay - it was generated by a “machine.” (Google algorithms in a Finnish server farm). The second tack, by contrast, was created on the map by a deliberately untruthful “person.” Fed. R. Evid. 801(a).

  Can you tell which tack is which?

  The Ninth can. United States v. Lizarraga-Tirado, 2015 WL 3772772 (9th Cir. June 18, 2015), decision available here.

Players:  Decision by Judge Kozinski, joined by Judge Graber and D.J. Ponsor.

Facts: Lizarraga-Tirado was charged with illegal reentry after being arrested at night near the border. Id. at *1. At trial he disputed he had crossed the border, and argued the agents had arrested him in Mexico. Id. An agent testified that she had documented the GPS coordinates of the arrest on a handheld device. Id. The government then introduced a Google Earth satellite image to illustrate the location of those coordinates. Id. The image (appended to the decision), has a “tack” that lists numerical coordinates that are in the U.S. Id. at Appendix A. The defense objected to the image on hearsay grounds. Id.

Issue(s): “Defendant claims that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay.” Id. at *2.

Held: 1. “Because a satellite image, like a photograph, makes no assertion, it isn’t hearsay.” Id. 2. “A tack placed by the Google Earth program and automatically labelled with GPS coordinates isn’t hearsay . . . Here, the relevant assertion isn’t made by a person; it’s made by the Google Earth program . . . 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 reaching that conclusion, we join other circuits that have held that machine statements aren’t hearsay.” Id. at *3.

Of Note: Judge Kozinski, a tech aficionado, writes an interesting but somewhat troubling decision. How did the Ninth know that Google Earth tacked the tack on the map, instead of an agent placing it there and labeling it with the coordinates? That fact wasn’t established at trial. See id. at *1. 

  The Court deduces this critical fact (which makes a huge difference in the hearsay analysis) by running Google Earth itself, and comparing the results with the map introduced in evidence. Id. at *2 (taking judicial notice of the fact that the tack was automatically generated). The problem is that the Google-generated tack, and a human-created tack, are actually identical and are indistinguishable on a Google Earth picture. See image above.  

   Judges independently running software and taking judicial notice is uncomfortable territory. Evidence and tech gurus (and maybe I.P. folks?) will want to take a very close look at the Ninth’s techie initiative here.

  The little Lizarraga-Tirado decision could become a Big Case, as cell service providers comply with FCC E911rules, turn from cell site location methods, and rely more heavily on satellite location technologies (creating data ripe for federal agent conversion into Google Maps).

How to Use: Chafing at the idea of our Robot Overlords getting a hearsay pass? Take heart, John Connor: the fight goes on. Concerns that a “machine might malfunction, produce inconsistent results or have been tampered with” . . . “are addressed by the rules of authentication, not hearsay.” Id. at *3. Judge Kozinski reviews Fed. R. Evid. 901(a), and notes that the proponent must show that the machine is reliable and correctly calibrated. Id. at *3. That authentication challenge wasn’t raised in this case, so that fight survives for another day.

                                               

For Further Reading: Big week, for federal evidence. On June 18, the Supreme Court issued its latest Crawford decision in Ohio v. Clark. For thoughtful discussion of the decision (and the divisions that underlie the unanimous outcome), see Lyle Denniston, Opinion Analysis: Crawford narrowed, Atkins solidified, available here.   

Image from Google Maps 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org .

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