In U.S. v. Lizzaraga-Tirado, No. 13-10530 (9th Cir. June 18, 2015), Judge Kozinski answered negatively the question: "Are a Google Earth satellite image and a digital 'tack' labeled with GPS coordinates hearsay?" The defendant was charged with illegal reentry into the US after he had been previously removed as an illegal alien. He contested the allegation that he had reentered the US before he was arrested and argued that Border Patrol agents crossed the border into Mexico before arresting him. At trial, the Border Patrol agent testified that she was contemporaneously recording the coordinates of the defendant's location using a handheld GPS device, and the government introduced a Google Earth satellite image with a red digital tack showing the GPS coordinates where the defendant was arrested in the US. The trial court overruled the defendant's hearsay objection to the image and admitted it into evidence.
On appeal, the Ninth Circuit upheld the ruling, stating that the hearsay rule "applies only to out-of-court statements, and it defines a statement as 'a person's oral assertion.'" The tack and coordinates added to the satellite image "do make clear assertions," but because they were automatically generated by Google Earth (a machine), and not made by a person, the modified satellite image was not hearsay. If there were concerns about the accuracy of the machine's placement of the tack, then the applicable rules are those of authentication, not hearsay.