Hearsay and data
- Judge David Langham
One of the most difficult legal concepts to understand it’s hearsay. The idea is rooted in the ideals of due process in general. Due process is rooted in the Fifth and Fourteenth Amendments to the Constitution of the United States, as well as various state constitutions. In a criminal prosecution, there is the more specific Sixth Amendment “confrontation clause” more specifically supporting this idea. There are different views on the subject.
Simply put, hearsay is a statement made out of court, or more succinctly made out of court, that is submitted to prove the truth of a fact. Section 90.801, Florida Statutes. So, if the question of fact in a case is whether a traffic light was green or red when a vehicle passed through the intersection and was involved in an accident, anyone present at that time can be sworn in. as a witness at trial and testify as to what she saw or heard at the time of the accident. However, this “or heard” does not allow such a witness to repeat what he believes another witness or a third person has said about what he believes he has seen.
Therefore, Witness 1 could testify “I saw the light, it was red”. Witness # 1 could testify “I heard the brakes squeal, then a loud creak”. But, witness one will not necessarily be allowed to testify that “I heard the man on the corner say ‘this car just passed a red light’. # 2, and he could repeat his own findings at trial, under oath and subject to cross-examination of the other party (s). But Witness # 1 will be limited to personal perceptions and other parties will have the opportunity to confront and question those perceptions. Note that this paragraph includes “not necessarily” because there are a series of exceptions to the hearsay rule, see sections 90.803 and 90.804 of the Florida Evidence Code (Florida has both an evidence code and rules proof, see To D or not to D (January 2016).
Hearsay is not a new concept. The prohibition on hearsay evidence has been codified in Florida since 1976 in section 90.802, defined in section 90.801, and subject to a myriad of exceptions described in sections 90.803 and 90.804. One would think, after nearly fifty years of application, that all possible hearsay issues would be settled and clear. This is not the case. In 2021, the Third District of Florida made RLG v. State, 322 So. 3d 721 (Fla. 3rd DCA 2021), addressing intriguing questions.
RLG is a minor placed on “supervised release” and subject to the control of a probation officer. This included a “miner-worn ankle bracelet,” which somehow monitored and communicated RLG’s physical location to a company called BI. Certainly everyone has seen examples of this in Hollywood. Disturbia (DreamWorks 2007) is a good example. The character played by Shia LaBeouf puts strings in his backyard to mark how far he can wander without his instructor notifying the police.
RLG was then charged with violating the limitations, leaving the house on certain occasions. At trial, an officer testified regarding RLG’s movements, based on information provided by BI. RLG disputed the admissibility of this information, arguing that it was hearsay. Prosecutors responded by saying that these data, these “statements” are not excluded by the hearsay ban because they were not made by people, but are simply facts “automatically generated without input. anyone’s manual ‘by a computer somewhere. , the state argued that they are not excluded by hearsay rules / laws.
The appeals court criticized the state’s argument. She noted that the state had not done a good job of proving the nature of this information, how the machine generated the data and to what extent it was “automatic” and free from human interaction or interference. . The arguments, he concluded, were “essentially a rough guess” about the information as no evidence was produced regarding how the information was generated, stored and produced. The file, the court noted, “was sorely lacking in the necessary factual support.”
During the proceedings, there was a cross-examination of the officer. There was identification of “BI Incorporated” as the owner and monitor of the bracelet. But, regarding the creation and transmission of the resulting data, the court concluded that some testimonies were “far from clear”. The court ruled that it was “inconclusive and indeterminate in several respects”. Essentially, the agent knew what was provided by BI Incorporated, but was not clear or competent to explain how this information was accumulated and communicated. Notably, communications from BI Incorporated “to the officer were not presented in evidence.”
The Court noted that “it is often said that the decision of a lower court whether or not to admit evidence is reviewed for abuse of discretion.” However, he explained that “this is only true when the decision does involve an exercise of discretion.” Conversely, if “the decision of a court of first instance whether or not to admit evidence (is) based on a purely legal decision is reviewed de novo”. This, “de novo”, means that the court of appeal reviews the decisions of the trial judge without giving them any deference or even recognition. The Court of Appeal examines these questions as if it were the first to analyze them in the particular case. This is a much less respectful standard than that of the “abuse of discretion” generally applicable to the review of a trial judge’s evidentiary decisions.
The court explained that “third party GPS recordings have traditionally been treated as hearsay”. Therefore, they are only admissible if there is an identified and demonstrated “hearsay exception” (see Sections 90.803 and 90.804, Florida Statutes). He accepted as plausible the state’s argument that it might not apply to “machine statements”. Yes, that is to say, they were “generated automatically without any manual intervention by anyone”, and therefore arguably have impartial and impeccable credibility and reliability. The Court noted that “in the new world of artificial intelligence, the finger of the accusation is often pointed, not by a human being, but by an algorithm”.
The Court accepted that this was not a new argument. He described how these “machine statements” came to enjoy a certain reliability and confidence. He noted that this data is now “considered for admissibility under a different, not yet fully defined, fundamental standard similar to that used to admit expert testimony.” Essentially, there is a tendency to exempt such information from the constraints of the hearsay rule or law on the grounds that a machine cannot be subjected to cross-examination. However, that does not end the investigation.
This ignores that machines do not themselves define processes or functions. They are programmed by people, subject to code control and parameters defined by people. That a hand-held calculator produces the result of “4” in response to 2 + 2 is not foolproof, it is convenient. For this solution, “4”, to be admissible in court, the programmer or creator of this calculator would have to testify as to how the machine came to its conclusion. That is, someone has to “show the work” as we praised in elementary school. This may seem unnecessary in the “2 + 2” scenario used here. But, as mathematics becomes more and more complex, the process of presenting one’s work becomes more and more important.
A judge disagreed with the court’s findings. The dissident allegedly claimed, concluding that there was sufficient evidence as to the GPS data. The judge said the case was simply “whether the GPS alerts are hearsay.” Concluding that they “are not hearsay” in law, this judge would have authorized the officer to rely on them and would have confirmed their acceptance by the court of first instance.
What is less clear is the future of witness machines. In the context of this decision, careful practitioners will make a point of considering the data generated by the machines. The best approach would be to question the potentials of hearsay and call one or more witnesses to establish the “without human intervention” basis or to establish another exception in Sections 90.803 or 90.804 to the hearsay ban. . The last place a lawyer wants to analyze such a challenge for the first time is in the middle of the trial.
By Justice David Langham
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