One of the most difficult legal concepts to understand is hearsay. The idea is rooted in the ideals of due process generally. Due process is rooted in the Fifth and Fourteenth Amendments to the U.S. Constitution, and in various state constitutions as well. In a criminal prosecution, there is the more specific "confrontation clause" of the sixth amendment supporting that idea more specifically. There are various perspectives on the topic.
Stated simply, hearsay is a statement made out of court, or more succinctly made outside of tribunal proceedings, that is submitted to prove the truth of some matter of fact. Section 90.801, Florida Statutes. Thus, if the question of fact in a case is whether a traffic signal was green or red when a vehicle passed through the intersection and was involved in an accident, anyone who was present at that moment can be sworn as a witness at trial and testify as to what she or he saw or heard at the time of the accident. However, that "or heard" does not allow such a witness to repeat what she/he believes some other witness or third person said about what she/he believes she/he saw.
Therefore, witness #1 might testify "I saw the light, it was red." Witness #1 might testify "I heard the screech of brakes and then a loud crunch." But, witness one will not necessarily be permitted to testify that "I heard the man on the corner say 'that car just ran a red light.'" The lawyers could instead bring in the "man on the corner" that said that, witness #2, and he could repeat his own conclusions in trial, under oath, and subject to the cross-examination of the other party(ies). But witness #1 will be limited to personal perceptions and other parties will have the opportunity to confront and question those perceptions. Notice that this paragraph includes "not necessarily," because there are a raft 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 Evidence Rules, see To D or not to D (January 2016).
Hearsay is not a novel 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 might think, after close to fifty years of application, that all possible questions of hearsay would be settled and clear. That is not the case. In 2021, Florida's Third District rendered R.L.G. v. State, 322 So. 3d 721 (Fla. 3rd DCA 2021), addressing intriguing questions.
R.L.G. is a juvenile placed on "supervised release" and subject to the monitoring of a probation officer. This included an "ankle bracelet worn by the juvenile," which somehow monitored and communicated R.L.G's physical location to a company called BI. Certainly, everyone has seen examples of this from Hollywood. Disturbia (DreamWorks 2007) was one good example. The character played by Shia LaBeouf puts up strings in his yard to mark how far he may wander without his monitor notifying the police.
R.L.G was later accused of violating the limitations, leaving home on certain occasions. At trial, an officer testified regarding R.L.G.'s movements, based on information provided by BI. R.L.G objected to the admissibility of that information, contending that it was hearsay. The prosecutors responded by arguing that this data, these "statements," is not precluded by the hearsay prohibition because they were not made by people, but are merely facts "automatically generated without manual input from any person” by some computer somewhere. As such, the state argued they are not precluded by the hearsay rules/statutes.
The appellate court was critical of the State's argument. It noted that the State did an inadequate job of proving the nature of this information, how the machine generated the data, and the extent to which it was "automatic" and free from human interaction or interference. The arguments, it concluded, were “essentially a raw guess" about the information because no evidence was produced regarding how the information was generated, maintained, and produced. The record, noted the court, was "woefully lacking the necessary factual support."
In 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, as to the creation and transmission of resulting data, the court concluded that some testimony was "far from clear." The court decided it was "inconclusive and indeterminate in several ways." Essentially, the officer knew what was provided by BI Incorporated, but was not clear or competent in explaining how that information was accumulated and communicated. Notably, the communications from BI Incorporated "to the officer were not offered into evidence. "
The Court noted that "it is often said that a trial court's decision whether to admit evidence is reviewed for an abuse of discretion." However, it explained, "this is true only when the decision actually involves an exercise of discretion." Conversely, if "a trial court's decision whether to admit evidence (is) based upon a purely legal ruling is reviewed de novo." That, "de novo," means the appellate court reviews the trial judge's decisions giving them no deference or even acknowledgment. The appellate court considers such questions as if it were the first to analyze it in the particular case. It is a far less deferential standard than the "abuse of discretion" standard generally applicable to the review of a trial judge's evidentiary rulings.
The Court explained that "GPS records of third parties have traditionally been treated as hearsay." Therefore, they are admissible only if there is some "exception to the hearsay rule" identified and demonstrated (see sections 90.803 and 90.804, Florida Statutes). It accepted as plausible the State's argument that may not apply to “statements by machines.” If that is, they were “automatically generated without manual input from any person,” and therefore arguably have unbiased and unimpeachable credibility and reliability. The Court noted that "in the brave new world of artificial intelligence, the finger of accusation is often pointed, not by a human being, but by an algorithm."
The Court accepted that this was not a new argument. It described how these “statements by machines” have come to enjoy some conclusion of reliability and trust. It noted that such data is now "reviewed for admissibility under a different, not-yet-fully-defined foundational standard akin to that used to admit expert testimony." Essentially, there is a trend to exempt such information from the constraints of the hearsay rule/statute on the basis that a machine cannot be subjected to cross-examination. However, that does not end the inquiry.
This ignores that machines do not self-define processes or functions. They are programmed by people, subject to the control of code and parameters set by people. That a hand-held calculator produces the result of "4" in response to 2 + 2 is not infallible, it is convenient. For that solution, "4," to be admissible in court, the programmer or creator of that calculator would need to testify as to how the machine reached its conclusion. That is, someone has to "show the work" as we were extolled in grade school. This may seem unnecessary in the "2 + 2" scenario used here. But, as the math increases in complexity, the process of showing one's work becomes increasingly important.
The foundational inquiry is how information was generated. Only if foundational evidence supports that data was generated without "human input" may a party argue that information should be excused from compliance with the Hearsay Rule. In that context, the party may be successful with the argument that such data is in fact not hearsay. Notably, the State in this instance did not present such foundational evidence and so was forced on appeal to "rely on the 'tipsy coachman' doctrine.
See You Can Call Me Dave, July 2021. Thus,
R.L.G. v. State does not hold that such machine-generated data is or is not hearsay. The holding is that the State in that particular case did not establish the foundational evidence (without "human input") that might have allowed the introduction of the evidence.
One judge dissented from the Court's conclusions. The dissenter would have affirmed, concluding that there was sufficient evidence as to the GPS data. This judge asserted that the case was simply "about whether GPS alerts are hearsay." Concluding that they "are not hearsay" as a matter of law, this judge would have allowed the officer's reliance upon them and would have affirmed the trial court's acceptance of them.
What is less clear, is the future of machines as witnesses. In the context of this decision, careful practitioners will make it a point to consider the data generated by machines. The best approach would be to question the hearsay potentials and to call a witness(es) to establish the "without human input" foundation or to establish some other section 90.803 or 90.804 exception to the hearsay prohibition. The last place a lawyer wants to analyze such a challenge for the first time is in the midst of a trial.
