Thursday, February 11, 2021
(a) Statement. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. ‘‘Declarant’’ means the person who made the statement.
(c) Hearsay. ‘‘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.
As is clear from these sections, hearsay is a statement by a declarant, and a declarant is a person. Therefore, courts, including the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Wallace, 2021 WL 69379 (Pa. Super. 2021), have held that GPS data is not hearsay.
In Wallace, Jamal Wallace and co-defendant Mason Clary were charged with crimes in connection with a shooting, and,
[a]t the time of the shooting, Clary wore a [Global Positioning System] (GPS) monitoring device on his ankle. Based upon data recovered from the GPS device, [ ] Clary was identified as being present at [ ] Pub Deli with [Wallace] before the assault and leaving [ ] Pub Deli approximately twenty minutes before the attack. The GPS data also identified [ ] Clary near the home of C.S. immediately before the crime, at the location of the crime, and then tracked back to the area near his and C.S.’s homes after the crime. On April 7, 2019, approximately twenty-four (24) hours after the shooting, Clary cut off his GPS monitoring device. The GPS data was corroborated by video surveillance.
After he was convicted, Wallace appealed, claiming, inter alia, that "the trial court erred by admitting Clary's GPS records into evidence, claiming that they constitute inadmissible hearsay."
The Superior Court disagreed, noting that
To date, Pennsylvania courts have not ruled on whether GPS records are hearsay. However, some state and federal courts have ruled that computer-generated GPS data cannot be deemed hearsay because it is an assertion made by a machine, not an assertion made by a person. See, e.g., U.S. v. Lizarraga-Tirado, 789 F.3d 1107, 1109-10 (9th Cir. 2015) (holding GPS coordinates generated by Google Earth program are not hearsay because “[t]he 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”) (emphasis added); U.S. v. Khorozian, 333 F.3d 498 (3d. Cir. 2003) (holding date stamp on fax not hearsay because, under Federal Rules of Evidence, a “statement” is something “uttered by a ‘person,’ so nothing ‘said’ by a machine is hearsay”) (ellipses removed, emphasis added); People v. Rodriguez, 16 Cal. App. 5th 355, 381, 224 Cal.Rptr.3d 295 (2017) (holding GPS coordinates automatically generated from defendant's ankle monitor not hearsay under California Evidence Code because “there was ‘no statement being made by a person’”) (emphasis added); Wisconsin v. Kandutsch, 336 Wis.2d 478, 799 N.W.2d. 865, 879 (Wis. 2011) (distinguishing between computer-stored and computer-generated reports, and finding computer-generated report from defendant's electric monitoring device not hearsay “[b]ecause the report was generated as ‘the result of an automated process free of human intervention.’”) (emphasis added).
The Superior Court then joined these courts, holding that "the Pennsylvania Rules of Evidence expressly define a “statement” for purposes of hearsay as the written or oral assertion of a person. Pa.R.E. 801."