For the Defense - Vol. 7, Issue 2 - 19

also acknowledged that ShotSpotter reports were " not 100
percent precise in detecting the presence of gunfire. " 22
On
appeal, the Superior Court affirmed the convictions and
held that the report was not inadmissible on hearsay and
Confrontation Clause grounds. In reasoning that it would
be impossible to cross-examine a declarant of the report
because it was generated automatically by a computer
system, the court acknowledged that the report itself
contained disclaimers that it had " not been independently
reviewed by Forensic Engineers " and that data in the
report " should be corroborated with other evidentiary
sources such as witness statements. " 23
The Tool Isn't Frye; It's Pa.R.Evid. 901(b)(9)
Even before the adoption of a formal Evidence Code,
Pennsylvania law mandated that any process used to
create or alter an item of proof be shown to produce an
accurate result. Nearly seventy years ago, the Pennsylvania
Supreme Court applied this principle to enlarged/
enhanced photographs in Poelcher v. Zink, and reasoned,
" [S]ince these enlargements were to reveal something
not clearly visible on the original note plaintiff should be
entitled to know how they were made, the qualifications
of the person performing the work, and the genuineness
of the enlarged reproductions. " 24
Poelcher's requirement
of " genuineness " was transformed to that of 'accuracy'
in Pennsylvania Rule of Evidence 901(b)(9), which requires
" [e]vidence describing a process or system and showing
that it produces an accurate result. "
To date, there has been virtually no development of the
law of Pennsylvania regarding Rule 901(b)(9). According
to the COMMENT to the Rule 901, " Pa.R.E. 901(b)(9) is
identical to F.R.E. 901(b)(9). There is very little authority
in Pennsylvania discussing authentication of evidence as
provided in this illustration. The paragraph is consistent
with the authority that exists. "
In actuality, the " authority " cited in the COMMENT
offers little insight-the cases analyzed turn in part on
other doctrines such as the " business records " exception.
And since the adoption of this Rule, it has been cited in
only three Superior Court decisions. Commonwealth
v. Loughnane,25
Commonwealth v. LaLonde,26
Commonwealth v. McKellick.27
In McKellick, then-Judge (now Justice) Donohue's
elaborated on what Rule 901(b)(9) would require to
authenticate a recording taken by a dashboard-mounted
video camera: " [T]estimony regarding the range of the
camera, its landscaping adjustment capability, its light
sensitivity, and the basic reliability of the video production
process, including whether or not the camera equipment
was functioning properly on the night in question... "
Id.28
and
digital/machine generated proof. Because Pennsylvania's
Rule 901(b)(9) language is identical to its Federal Rules
counterpart, federal law and decisional law from states
that adhere to the federal approach show that this form
of authentication is required and often must be presented
through expert testimony.29
State v. Brown is important for what is inadequate
to satisfy the authentication standard-a witness' ipsi
dixit that " It is very accurate. We use it in court all the
time. " 30
Lizarraga-Tirado, by contrast, tracks now-Justice
Donohue's criteria:
A proponent must show that a machine
is reliable and correctly calibrated, and that
the data put into the machine (here, the GPS
coordinates) is accurate. ... That burden could be
met, for example, with testimony from a Google
Earth programmer or a witness who frequently
works with and relies on the program. It could
also be met through judicial notice of the
program's reliability, as the Advisory Committee
Notes specifically contemplate.31
In sum, authentication and proof of process accuracy are
essential for the admission of digital/machine generated
proof. Sometimes the challenge will be to the technology
itself - for example, is " ShotSpotter " generally accurate?
Other times it will be to the individual machinery-for
example, does this set of security cameras at this bank
or store accurately record time/images? Although the
standard is modest-has the proponent shown enough
so that a reasonable jury could find the process to be
accurate- it is still a threshold that must be met.
It may be that some or indeed all of the forms of such
proof discussed in this article can be shown to satisfy those
demands. It may also be that the effort needed to establish
such accuracy may not be great. But the authentication
rule is the source of challenges defense counsel should
make-not Frye with no defense expert(s). Even if the
challenge is denied as to admissibility, the weaknesses
and potential for error are then fair game for the jury
to consider at trial, particularly where the data at issue
can't be cross-examined and issues of liberty and life are
at stake.
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NOTES:
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2 See, e.g., NIJ Special Report Investigative Uses of Technology: Devices,
Tools, and Techniques (Oct. 2007), available at https://nij.ojp.gov/library/
publications/investigative-uses-technology-devices-tools-and-techniques.
3
visited February 14, 2022).
4
It is this type of process-reliability-checking testimony
that is the essential prerequisite for the admission of
See GARMIN, What is GPS?, http://www8.garmin.com/aboutGPS/, (last
See GARMIN, What is GPS?.
5 See GAO Report at 18, 25.
6
Nathan Freed Wessler, Carpenter v. United States and Beyond:
Expanding the Fourth Amendment's Protections in the Digital Age, ACLU
Vol. 7, Issue 2 l For The Defense 19
https://nij.ojp.gov/library/publications/investigative-uses-technology-devices-tools-and-techniques https://nij.ojp.gov/library/publications/investigative-uses-technology-devices-tools-and-techniques http://www8.garmin.com/aboutGPS/
For the Defense - Vol. 7, Issue 2

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