If It’s on Google Earth, It Must Be True

If Google Earth says you’re north of the border it’s not “hearsay.”

The Ninth Circuit found that a “tack” placed on a Google Earth map is not hearsay because the rule applies only to out-of-court statements by persons. “Here, the relevant assertion isn’t made by a person; it’s made by the Google Earth program,” so the statement is not hearsay, which is an out-of-court statement made by a person to prove the truth of the matter asserted.

The issue arose when the defendant was accused of entering the United States. He contended he was still on the Mexico side of the border when he was arrested. To prove his location the government introduced a Google Earth satellite image with a “tack” showing his location. The tack was placed on the image by entering the coordinates where the arrest occurred.

The appellate court found the satellite image was not hearsay because it was a photograph and thus makes no assertion. As to the “tack,” the court took “judicial notice of the fact that the tack was automatically generated by the Google Earth program.”

“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,” the court wrote.

In affirming the trial court’s overruling of defendant’s objection based on hearsay, the appellate court admitted “machine statements” may present evidentiary concerns because a “machine might malfunction, produce inconsistent results or have been tampered with. But such concerns are addressed by the rules of authentication, not hearsay.”  However, defendant objected only on hearsay grounds, not authentication, so the conviction was affirmed.

United States of America v. Paciano Lizarraga-Tirado, Ninth Cir. No. 13-10530, issued June 18, 2015.