Google Earth ‘satellite image’ & ‘digital tack’ not hearsay: 9th Circuit

Does a Google Earth ‘satellite image’ and a ‘digital tack’ labeled with GPS coordinates hearsay? United States Court of Appeals for the Ninth Circuit ruled it is not and upheld trial court conviction of defendant for reentering into Unites States as a previously removed alien.

“Because a satellite image, like a photograph, makes no assertion, it isn’t hearsay”, the Court said.

Defendant claimed that he was not in United States when arrested and both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay. For hearsay purposes, a statement is defined as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

The Court, however, said that the tack and coordinates present a more difficult question as they make clear assertions. If the tack is placed manually and then labeled (with a name or GPS coordinates), it’s classic hearsay.

“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 computer generated 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”, the Court observed.

The Court further 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 Court opined that because the satellite image and tack-coordinates pair weren’t hearsay, their admission also didn’t violate the Confrontation Clause

The Court cautioned that’s not to say machine statements don’t present evidentiary concerns. A machine might malfunction, produce inconsistent results or have been tampered with. But such concerns are addressed by the rules of authentication, not hearsay.

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