Scientific Geospatial Evidence

Geographic intelligence figures and remotely sensed images may also be characterized as scientific evidence upon which an expert has reasonably based an opinion or conclusion. Under Federal Evidence Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Although Rule 702 envisions a relaxed test for admitting scientific, technical, or other specialized knowledge, the trial court retains a “gatekeeping” obligation under Rule 104(a) to ensure that such evidence is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993) (emphasis added); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In Pittston Co. v. Allianz Insurance Co., 905 E.Supp. 1279, 1310 (D.N.J. 1995), rev’d in part on other grounds, 124 F.3d 508 (3d Cir. 1997), an environmental contamination lawsuit, the plaintiff objected when an expert hydrogeologist referred to aerial photographs during his testimony. Plaintiff’s counsel complained that the hydrogeologist was not qualified to interpret aerial photographs. The court allowed the testimony based on the expert’s assertion that members of his profession reasonably rely on aerial photographs. In Misener v. General Motors, 165 F.R.D. 105 (D.Utah 1996), the plaintiff was allegedly injured because of a defective seatbelt. Citing Rule 703, the magistrate judge admitted a test video introduced during the testimony of plaintiff’s expert which showed a collision’s effect on a seatbelt because the video was “the type of data reasonably relied on by experts in the field of automotive engineering in making such a conclusion.” Id. At 108.

Even though the United States Supreme Court, in Kumho, 526 U.S. at 141, has recognized the trial court’s extensive discretion to consider all factors pertinent to the admission of expert testimony or evidence, counsel should still be mindful of the four factors with which courts generally assess the relevance and reliability issues: (1) whether the expert’s theory or technique has been tested; (2) whether the theory has been subject to peer review and publication; (3) whether the theory has a known or potentially high rate of error; and (4) whether the theory has gained general acceptance within the relevant scientific community. Daubert, 509 U.S. at 593-94. “The admissibility of remote sensing information must be examined within the context of the general requirements for admission of scientific evidence and expert opinion.” Hodge, supra, 14 Pace Envtl.L.Rev. at 714. In Robinson v. Missouri Pacific Railroad Co., 16 F.3d 1083 (10th Cir. 1994), the Tenth Circuit upheld the trial court’s decision to admit a computer animation which demonstrated an expert’s opinion about the cause of a railroad accident. In so doing, the appellate court noted especially that the evaluation under Rule 702 and Daubert is flexible: “its overarching subject is the scientific validity – and thus the evidentiary relevance and reliability – of the principles that underlie a proposed submission.” Robinson, 16 F.3d at 1089.

The introduction of geographic intelligence in conjunction with an expert’s testimony may also counter an opponent’s objection that any such evidence should be excluded as hearsay, because, for example, remotely sensed data is transmitted to earth in a digital format before being converted to an interpretable picture with image processing software and because it requires an individual to enter data to produce a recognizable satellite image. Under Rule 703, expert testimony may include hearsay if the basis of the testimony is reasonably relied upon by members of the expert’s field. United States v. Elkins, 885 F.2d 775 (11th Cir. 1989), cert. denied, 494 U.S. 1005 (1990). In Grimes v. Employers Mutual Liability Insurance Co., 73 F.R.D. 607,611 (D.Alaska 1977), a personally injury plaintiff introduced into evidence a film showing his daily activities. The court permitted it to be admitted under the catchall hearsay exception, Rule 807: (1) the plaintiff gave the defendant ample notice of his intent to use the film; (2) the film had a high probative value compared to other evidence; and (3) there were guarantees of trustworthiness, as the subject in the film was available for cross-examination.

Finally, expert testimony may provide the foundation for the admission of evidence derived from geographic intelligence under the business records exception to the hearsay rule. Rule 803(6) provides that data gathered in a routine manner as part of an organization’s everyday activities is reliable and admissible despite its hearsay nature. The testimony of an expert familiar with the geographic intelligence can likely provide the foundation needed to establish that data was gathered on a regular and routine basis. Hodge, supra, at 717,727-28. Of course, the expert must also establish to the court’s satisfaction that the computer was functioning properly, the input and underlying equations were sufficiently complete and accurate, and the data are relevant and reliable. Daubert, 509 U.S. at 593-94.

Potential Evidentiary Issues Using Geographic Intelligence
Whether the geographic intelligence is considered demonstrative or scientific evidence, a litigator seeking its admission must still (1) qualify the expert, if any; (2) authenticate and prove the contents of the data; and (3) establish that proper and accepted processing techniques were employed. The need for the latter two steps arise particularly because geographic intelligence, particularly containing satellite imagery, just as photographs, videotapes and lately computer simulations or computer generated visual evidence, can be manipulated. Hodge at 710-713.

With today’s technology, an investigator can process or enhance geographic intelligence data in varying degrees to bring out features of interest. Specifically, the alteration of individual pixels’ spectral values in a satellite image poses the greatest risk for manipulation of data. Pixels are picture elements whose dimensions determine resolution or the level of detail of the image. Thus by changing the spectral value of pixels, an investigator or processor can alter the resolution of an image and its appearance. See generally Hodge, 704-10. Therefore it is essential that counsel establish the authenticity of the data and trace its chain of custody so as to demonstrate to the court that the data has not been nefariously manipulated and/or altered in any fashion. The use of an archive history file accompanying the final geographic intelligence exhibit provides the potential for objective, external authentication and establishes that appropriate techniques and methodologies were employed in the creation of analysis and visualizations.

An archive history file is a document listing (1) all the data used in the creation of the final exhibit; (2) all the tools used in the creation of the final exhibit, and, (3) all the processes and methods used to create an exhibit. Using a food analogy, a document containing a complete list of the ingredients, the tools used to prepare the food (utensils, containers, pans, ovens and so on), and a comprehensive recipe listing exactly the processes and methodologies used to prepare the ingredients with the various tools would allow an independent chief to prepare a duplicate dish. In the same manner, a complete list of all the data (ingredients), software and hardware (utensils, etc.), and processes (recipe) used to create a geographic intelligence exhibit allows opposing counsel or an outside expert to authenticate the offered exhibit.