In 2013, Border Patrol agents arrested Paciano Lizarraga-Tirado in Arizona, near the U.S.-Mexico border, and charged him with illegally re-entering the U.S. Mr. Lizarraga-Tirado had been removed from the U.S. in 2012.
At his trial, Mr. Lizarraga-Tirado argued that the agents had crossed into Mexico when they arrested him. However, one agent had recorded the coordinates of the arrest using a handheld GPS device. To demonstrate these coordinates, the government introduced a Google Earth satellite image, which placed the arrest on the U.S. side of the border. Mr. Lizarraga-Tirado was, subsequently, convicted.
On appeal to the U.S. 9th Circuit Court of Appeals, Mr. Lizarraga-Tirado argued that the Google Earth satellite image and digital tack amounted to impermissible hearsay because they asserted where the agents worked and where they responded. The 9th Circuit disagreed. In an opinion authored by Judge Alex Kozinski, the Court ruled that machine-generated proof is not hearsay, writing:
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 program analyzes the GPS coordinates and, without any human intervention, places a labeled tack on the satellite image. Because the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there’s no statement as defined by the hearsay rule.
In United States v. Washington, 498 F.3d 225 (4th Cir. 2007), a DUI case, the majority wrote that machine-generated data of a positive test in a blood sample was not a statement and, therefore, not subject to the hearsay rule. Rather than being a statement by lab technicians, the 4th Circuit found that the proof was generated by a computer analyzing the sample.
Machine-generated proof has also been addressed by the 3rd Circuit. In United States v. Khorozian, 333 F.3d 498 (3rd Cir. 2003), the Court ruled that “neither the header nor the text of [a] fax was hearsay.” (Id. 506.) According to the 3rd Circuit, the rule against hearsay bars only statements made by persons. Therefore, “nothing ‘said’ by a machine…is hearsay.” (Id.)
Other federal courts have reached similar conclusions in a variety of contexts. In United States v. Safavian, 435 F.Supp.2d (D.D.C. 2006), for example, the District Court for the District of Columbia held that certain portions of email communications were nonassertive verbal conduct falling outside the rule against hearsay. Likewise, in Telewizja Polska USA v. Echostar Satellite Corp., 2004 WL 2367740 (N.D. IL 2004) (summary available here), the Court ruled that images and text posted on a website offered to show what the website looked like on a particular day were not “statements” within the meaning of the hearsay rule.
For some time now, state courts have reached the same conclusion regarding machine-generated proof. An early example of such a case is State v. Armstead, 432 So.2d 837 (La. 1983), which involved the admission of computer printouts to prove obscene telephone calls originated from the defendant’s telephone. There, the Louisiana Supreme Court ruled that digital evidence is not hearsay when it is “the by-product of a machine operation which uses for its input statements entered into the machine” and “was generated solely by the electrical and mechanical operations of the computer and telephone equipment.” More recently, the Mississippi Court of Appeals ruled in a capital murder case that Facebook notifications were not hearsay because there was no assertion made by a human. (State v. Smith, Case No. 2012-KA-00218-COA).
The ruling by the 9th Circuit Court of Appeals joins a growing list of courts across the U.S. ruling that machine-generated proof is not hearsay. Rulings such as these should make it easier to admit such proof. You can read the full text of the 9th Circuit’s opinion here, provided by Justia.