Sunday, April 12, 2020
Court of Appeals of Arkansas Finds Circuit Court Properly Failed to Take Judicial Notice of Google Maps Data
It's something many of us do all the time: Plug two locations into Google Maps to get a sense of how long it might take to get from Location A to Location B. But is it something that should lead to judicial notice? That was the question of first impression addressed by the Court of Appeals of Arkansas in its recent opinion in Reed v, State, 2020 WL 466668 (Ark.App. 2020).
In Reed, he State of Arkansas charged Lonnie Reed with several crimes related to an armed robbery of Express RX Pharmacy, which is located near the intersection of Mississippi Street and Cantrell Road in Little Rock. The robbery occurred at about 6:52pm.
During his jury trial, Reed presented an alibi defense: he was buying tires at Tire Market, on 16717 MacArthur Drive, in North Little Rock when the robbery occurred. Tire Market owner Jerry Ford testified that he sold Reed $376.90 in new tires on 6 July 2016 (the day of the robbery). According to Ford, his typical business hours are 8:00 a.m. to 5:00 p.m., but he had stayed open late, and Reed “was in the process of leaving” the tire store around 6:40 p.m. When defense counsel stated, “So he [Reed] was leaving your shop at 6:40[?]” Ford replied, “Yes.” As evidence, Reed presented Ford’s handwritten receipt containing Reed’s name, address, dated “7-6-16,” and time-stamped “6:40.” On redirect and recross-examination, Ford said that it may have been “a little after” 6:40 p.m. when Reed left the tire shop.
At the close of trial, the defense proffered two jury instructions. The first proffer was
a map and directions printed from Google Maps, which showed a route starting at the tire shop (16717 MacArthur Drive, North Little Rock) and ended at Express RX Pharmacy (7612 Cantrell Road, Little Rock). The document states: “Drive 12.5 miles, 14–18 min.”
And, the second proffered jury instruction stated:
A.R.E. Rule 201
You must accept as conclusive the following facts:
The typical route by car from 16717 MacArthur Drive in North Little Rock to 7612 Cantrell Road in Little Rock is 12½ miles long and takes 14–18 minutes.
Over Reed’s objection, the circuit court instructed the jury exactly as we have quoted above, with the sole exception that the court omitted the italicized words “and takes 14–18 minutes.” In other words, the court told the jury to accept the distance in miles between the two points at issue (12.5 miles) but not how long it “usually” takes to drive between them (14–18 minutes).
After he was convicted, Reed appealed, claiming "that the circuit court should have taken judicial notice of the estimated driving time [and] instructed the jury on the fact." The court disagreed, concluding that "no consensus exists among federal or state courts on whether Google’s (or any other internet source’s) estimated driving times may be judicially noticed. At least one court has used Google Maps to establish distance and estimated driving time."
According to the court,
The Google Maps information that Reed proffered about a fourteen-to-eighteen-minute estimated driving time between his alibi location (tire store) and the crime scene (pharmacy) does not tend to show the basis or foundation for this information, how this information was independently obtained, or whether there was any incentive to ensure the accuracy of Google’s posted estimated driving times.
Reed has not shown that his proffered estimated driving time is a fact that can be accurately and readily determined using Google Maps. No testimony or documentary evidence established how Google Maps develops the estimated driving times, what level of accuracy the estimated time of travel has, whether the estimated Google drive times are verifiable (or falsifiable) using parallel sources (like Apple Maps or even just a witness driving the route and timing it). In fact, Reed’s Google Maps proffered estimated driving-time reliability is undermined by its own disclaimer:
These directions are for planning purposes only. You may find that construction projects, traffic, weather, or other events may cause conditions to differ from the map results, and you should plan your route accordingly.
As the disclaimer either expressly states or intimates, driving times can differ depending on personal speeding habits, weather, traffic, collisions, construction, or other road conditions—including time of day (rush hour or not). Because the estimated driving time could be reasonably disputed, we agree that it was not a fact that could be judicially noticed in this criminal case. Consequently, the court did not abuse its discretion in refusing to instruct the jury that it must conclusively accept Reed’s proffered estimated driving time.