EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 22, 2021

Eighth Circuit Finds Computer-Generated Maps Made With Human Input Were Hearsay

Federal Rule of Evidence 801(c) states that

“Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

It is well established that computer-generated evidence is not hearsay. But what about computer-generated evidence based on human input? That was the question addressed by the Eighth Circuit in its recent opinion in United States v. Oliver, 2021 WL 503298 (8th Cir. 2021).

In Oliver, Shelton Oliver was charged with five counts of drug-trafficking. Specifically,

Law enforcement officers began investigating Oliver and other drug-trafficking suspects in October 2017 after a man named Ty Olsen died of a multi-drug overdose in Sioux City, Iowa. Officers had information that Oliver sold Olsen heroin shortly before his death. As part of the investigation, law enforcement used a confidential informant named Christopher Hirschauer to buy $50 to $100 worth of heroin from Oliver on four separate occasions. Each of the transactions took place within 1,000 feet of either a park or a school. Oliver was eventually arrested for drug trafficking in March 2018.

At trial, the prosecution introduced

a series of maps offered to establish that the controlled buys took place within 1,000 feet of a “protected location.”...Two Sioux City employees-Geographic Information Systems Supervisor Nicholas Bos and Crime Analyst Marie Divis-created the maps to depict the location of each drug transaction relative to nearby parks or schools. Based on statements made by Sergeant Troy Hansen from the Sioux City Police Department, Bos and Divis used mapping software to electronically mark the relevant locations on maps and then noted the distances between them with lines and other labels.

After he was convicted, Oliver appealed, claiming that "the map exhibits are inadmissible because Bos and Divis's markings (or 'tacks') on the maps constitute hearsay. The Eighth Circuit agreed, finding (harmless) error, concluding that

We are not persuaded by the argument that the markings cannot constitute hearsay simply because they are computer-generated. Although “[m]achine-generated records usually do not qualify as ‘statements’ for hearsay purposes,” they “can become hearsay when developed with human input.” United States v. Juhic, 954 F.3d 1084, 1089 (8th Cir. 2020)....In Juhic, this court determined that computer-generated reports contained impermissible hearsay because “human statements and determinations were used to classify” the relevant files that were referenced in the reports and later offered against the defendant....Similarly, here, Sergeant Hansen's out-of-court statements regarding the physical locations of the drug transactions were used to produce the relevant points and distances marked on the maps. Bos also testified that he added a legend to each map describing the relevant locations.



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Eighth Circuit...Iowa

Posted by: John | Feb 22, 2021 7:23:28 PM

Sorry to chime in late here, but this is an intriguing case. The issues arising from software-generated records are quite important these days. So it's a little unfortunate the case was ultimately resolved on harmless error—and that the defendant chose not to argue the underlying maps themselves were hearsay.

Nowadays, as we all know, the SW behind things like Google Maps (I'm not sure if that was used here, the opinion wasn't so clear on that) is extremely complex. And of course, all SW begins its life as source code, which is written by human programmers.

Furthermore, the use of machine learning techniques is widespread. ML relies heavily on the so-called "big data", but much of that data is text written by people—i.e. classic hearsay—or is statistical information about various actions performed by people. Humans also decide which data will be used for input to ML algorithms.

These are obviously familiar points, but I just highlight them because it would be nice to see a more in-depth analysis of the hearsay issue show up in a judicial opinion. Again, it's too bad the issue wasn't presented front and center here, because you can be sure Kelly, J. would've supplied a very thoughtful discussion.

Circling back to the harmless error point for a moment, I found that analysis to be a little cursory. The court mentioned the maps were "duplicative" of the photos and testimony in the record, but I could see SW-generated and marked-up maps being impressive and influential to a jury in ways that even photos can't match. That said, a description of the photos was absent. Maybe the buys all took place right next to the relevant parks/schools. Then just a photo of the buy location could easily show the close proximity because the park/school would show up in the immediate background. But nothing like that was readily apparent from the opinion.

Evidentiary issues aside too, the various possibilities for sentencing sort of blew my mind a little. Without the benefit of the First Step Act, it would have been life, which is obviously harsh. Even with FSA he was still looking at 25 years. Then on resentencing he might "only" get 240 months. I recognize these were sales near protected locations, although it was a setup orchestrated with a CI; he wasn't exactly targeting innocent children. And one of his buyers did succumb to an OD, but again, he wasn't charged for that conduct.

Posted by: hardreaders | Feb 25, 2021 10:23:07 PM

Apologies for the seriatim comments too, but I found a little "fun fact" about the defendant. His nickname is "Sinbad"—that was from the DOJ press release. In this case, you could say he was "sinning bad"!

Posted by: hardreaders | Feb 25, 2021 10:24:37 PM


Posted by: Colin Miller | Feb 27, 2021 10:22:46 AM

hardreaders: It sounds like this might be an interesting idea for a law review article as I'm sure future courts will be dealing with similar issues.

Posted by: Colin Miller | Feb 27, 2021 10:31:19 AM

Thanks for the encouragement! I'm guessing someone—or some people—beat me to it on that one, but maybe I'll see if there's still a fresh take I can provide.

Posted by: hardreaders | Feb 27, 2021 1:26:30 PM

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