Authentication requires the proponent of evidence to show that the evidence “is what the proponent claims it is.” Fed. But such concerns are addressed by the rules of authentication, not hearsay. A machine might malfunction, produce inconsistent results or have been tampered with.
That’s not to say machine statements don’t present evidentiary concerns. However (and here is the big issue), the court stated that hearsay is not really the most important hurdle to overcome. Therefore, the court concluded that since the placement of this tack is not an assertion by a person, it is not hearsay. However, hearsay rules only apply to out-of-court statements, and it defines a statement as: a person’s oral assertion, written assertion, or nonverbal conduct. The court said that if the tack was placed by hand and labeled, it would likely be hearsay since it is an assertion. While we’ve never faced that precise question, we’ve held that a photograph isn’t hearsay because it makes no “assertion”. The court wrote:Į first consider whether the satellite image, absent any labels or markers, is hearsay. The defendant objected, claiming the exhibit constituted hearsay. Sample image showing computer generated border to US (the yellow line) and GPS tack placed above the border. In the printed exhibit, it showed the “tack” to the north of the border similar to the example below. At trial, the prosecutor typed in the GPS coordinates into Google Earth and placed a “tack” in the location. The officer testified that upon arrest, he noted the GPS coordinates from a hand-held device. The case involved the illegal entry into the United States by the defendant, and a capture by the Federal authorities. The Court in the United States of America v. This is not an easy question to answer, yet a recent decision by the Ninth Circuit Court of Appeals helps resolve one issue of admissibility for such imagery: Google Earth coordinates are not hearsay. However, when finding great images, or determining precise locations based on GPS coordinates, the next question is always: “How do I get this into evidence?” Many attorneys rely on Google Earth as the primary source for finding visual information for specific locations, all over the world, involved in litigation (see my prior post discussing how to use Google Earth for images and obtaining archival images).
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