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As a former Alabama trial and litigation attorney, Annie has a keen eye for expert evidentiary issues and a clear voice for practical
solutions. Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published
by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude. While in law school, she served as Vice President
of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team
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Reprinted with permission.
IMS ExpertServices
periodically sends me e-mails that highlight recent key court cases that can significantly affect the effectiveness of expert testimony, both
for the plaintiff and for the defendant. You need only scan the headlines I post daily to know the importance of effective legal representation
when intellectual property (IP) is being contested.
This article by Annie Dike, writing for IMS
ExpertServices, points out a case where the use of a Google Earth image was admitted as evidence in a criminal case even after the defense attempted
to have it dismissed as 'hearsay' evidence. The judge's reasoning for qualification is interesting. It seems to me there is fundamentally no
difference between allowing a Google Earth image and those obtained from private and commercial security cameras, which is done routinely.
"Do You, Google Earth, Swear to Tell the Truth?"
Posted by Annie Dike, Esq.
August 18, 2015 Can Google Earth make an assertion? Let's say in a trial over whether you went to work today, you offer up a Google Earth
satellite image that depicts you sitting at your computer typing away. Would that be an assertion that you were at your desk working this morning?
Your boss may say the photo could have been taken last week. But what if the image came with a date and time stamp and GPS coordinates? Now
that's proof. But, isn't that also a statement? Isn't it hearsay? When faced with the same question, the Ninth Circuit said no.
In a recent opinion over the arrest of an illegal alien, a Google Earth satellite image was offered up by the Border Patrol to prove that
the defendant was arrested on the states' side of the United States-Mexico border. See U.S. v. Paciano Lizarraga-Tirado, 2015 WL 3772772 (9th
Cir. 2015). The image also included a digital tack with GPS coordinates corresponding to the coordinates the officer logged when the arrest
was made. Hence the Google Earth image was essentially an assertion that the defendant had indeed crossed the border and was arrested on United
State soil. Or was it? The Ninth Circuit, likening the Google Earth satellite image to a photograph found the image itself was not an assertion
because it was merely a depiction of a scene as it existed at a particular time. You, sitting at your desk typing for example. However, the
digital tack and GPS coordinates required further analysis. According to the Ninth Circuit, these additions made clear assertions. Like the
date and time stamp on your work photo which assert that you were at your desk working at 10:34 a.m. But, is an assertion hearsay? It depends
on "who" said it: a human or a machine.
The court explained that topography lines added to an image by a human are hearsay because they are a person's written assertion under Fed.
R. Evid. 801(a). The Ninth Circuit joined its sister circuits in finding statements made by a machine, however, do not qualify as hearsay under
Rule 801. The question then was whether the digital tack and GPS coordinates that were added to the Google Earth satellite image were made by
a machine. The court found they were. Even though a human enters the coordinates to pan to a certain location, he has no role in finding and
retrieving the image for the location. The Google Earth program handles this. The tack is placed without any human intervention. Thus, the machine
said it, so it is not hearsay.
Interestingly, the court did offer up, on its own initiative, a potential angle of attack for Google Earth images: authentication. Because
machines can malfunction or be tampered with, if a machine statement is attacked on authentication grounds, the proponent of the evidence must
prove accuracy of the process or system which produced the statement. Meaning, if your Google Earth image is challenged, you would have to establish
Google Earth's reliability and accuracy. This could be done by bringing in a Google Earth programmer. Unlikely. They probably all work out of
a bungalow in the Bahamas. But, you could also bring in an expert who frequently works with and relies on the program and can attest to its
accuracy. This may be a growing trend in the digital fingerprinting area. Our interactions and activities these days are constantly logged in
the digital universe. It may seem simpler than ever in this age to show when a file was opened on your computer, where you had dinner last night
or how much you transferred out of your bank account yesterday. But, you may need an expert to help establish the accuracy and reliability of
the programs that log and track this type of digital information. If you need a witness with digital fingerprinting expertise, IMS ExpertServices
can locate them. Metadata experts can help you find, verify, and defend the very types of digital evidence you may not have even known existed,
but that can make all the difference in your case.
How about it readers, have you seen an increased use and reliance on machine-generated statements in litigation? What types of challenges
have you made to such evidence or what obstacles have you seen it overcome? Respond when you have time, of course. For now, you better get back
to work. Google is watching. ---
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This article was originally published in BullsEye,
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Posted September 11, 2015
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