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). 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?”
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. The Court in the United States of America v. Paciano Lizarraga-Tirado (14 C.D.O.S. 6310) faced this novel question. The case involved the illegal entry into the United States by the defendant, and a capture by the Federal authorities. The officer testified that upon arrest, he noted the GPS coordinates from a hand-held device. At trial, the prosecutor typed in the GPS coordinates into Google Earth and placed a “tack” in the location. In the printed exhibit, it showed the “tack” to the north of the border similar to the example below.
Sample image showing computer generated border to US (the yellow line) and GPS tack placed above the border.
The defendant objected, claiming the exhibit constituted hearsay. The court wrote:
[W]e first consider whether the satellite image, absent any labels or markers, is hearsay. While we’ve never faced that precise question, we’ve held that a photograph isn’t hearsay because it makes no “assertion”. See United States v. May, 622 F.2d 1000, 1007 (9th Cir. 1980); see also United States v. Oaxaca, 569 F.2d 518, 525 (9th Cir. 1978).
The court said that if the tack was placed by hand and labeled, it would likely be hearsay since it is an assertion. 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. Fed. R. Evid. 801(a) (emphasis added).
Therefore, the court concluded that since the placement of this tack is not an assertion by a person, it is not hearsay. However (and here is the big issue), the court stated that hearsay is not really the most important hurdle to overcome. The court wrote:
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. Authentication requires the proponent of evidence to show that the evidence “is what the proponent claims it is.” Fed. R. Evid. 901(a).
Since the defendant did not object on the basis of authentication, the exhibit was properly admitted. However, if proper objection was made by the defendant, the result may well have been different.
What’s an attorney to do?
When in doubt, always get back to the basics. How do you get a photograph into evidence that was taken by a third party? You ask a witness who has knowledge of the area if it appears to accurately depict the scene at the relevant time. For any Google Earth or Map image, the procedure is really the same.
The case of State of New Jersey in the Interest of J.B., a minor (DOCKET NO. A-2228-08T4) is illustrative. In this case, the prosecutor sought to introduce a Google Earth satellite image to establish relative distances between key locations of the case. The defense objected, so the prosecutor brought in a witness who testified he personally visited each of the locations in question, as well as measured the distances between those locations on the odometer of his police cruiser, and they matched what was shown on the satellite images. The court of appeal found the judge did not abuse his discretion in allowing the Google Earth images.
Similarly in the Lizarraga-Tirado, the prosecutor had the agent testify she was very familiar with the area from working there, and the tack marked “approximately where [she was] responding to” on the night of defendant’s arrest. This testimony protects the admissibility by providing foundation from a witness familiar with the area.
In short, Google Earth or Google Maps provide great potential for use in litigation; however, always get back to the basics when it comes to admissibility. Considering using a witness, ready to testify, who can vouch for the accuracy of the image or data from their own personal knowledge. Otherwise, you risk getting your evidence thrown out.
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