Does a Computer Speak? 9th Circuit Rules Google “Tack” Is Not Hearsay

Electronic evidence is a subject that even in 2015 is rarely covered in Law School Evidence classes. Perhaps those curricula should be revised in light of a recent 9^th Circuit opinion holding that a Google Earth “tack” is not inadmissible as hearsay.  Is this ruling intuitive? Does it fly in the face of what trial lawyers learned about the hearsay rule in law school? Yes, and no.

We learned in law school that hearsay is an out of court statement offered to prove the truth of the matter contained within that statement. But what if the statement were made by a computer rather than a human? With the increasing reliance of individuals and businesses on computers and smartphones, courts are encountering this issue with greater frequency. Law schools and instructors of CLE courses on trial practice should take note.

The 9^th Circuit issued the most recent statement on admissibility of computer-generated evidence in United States v. Lizarraga-Tirado. The court held that a Google Earth “tack,” indicating a pinpointed location on Google’s Earth’s satellite image is not inadmissible hearsay.  The appeal concerned a conviction for illegally entering the United States from Mexico as a previously removed alien.  The Court noted that “The Border Patrol Agent testified that she contemporaneously entered the coordinates of the defendant’s arrest using a handheld GPS device.”

At trial, the government introduced a Google Earth image with a “tack” at the location where the GPS coordinates indicated the arrest took place.  A defense in the case was that the arrest had occurred on the Mexico side of the border, but the Google Earth “tack” showed the location as the U.S. side.

The Court held that the Google Earth tack was not inadmissible hearsay, noting that the “statement” that may be objectionable as hearsay must be a statement of a person, not a computer. The Court, however, first had to take judicial notice of the fact that the tack was automatically generated by Google Earth, not placed by a human (which would have made it subject to a hearsay objection

This Court of Appeals opinion poses a challenge for trial lawyers: how to assert or object to electronic evidence when the rules were created in an analog age.

If you have questions about admissibility of electronic information at trial, please contact Kenneth N. Rashbaum.