Friday, December 12, 2008

MapQuest as Hearsay

As I explained in an earlier post, the U.S. states and the federal legal system all bar the admission of hearsay, except pursuant to certain exceptions. I noted that these rules define hearsay, essentially, as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Federal Rules of Evidence, Rule 801(c).

As I explained in that earlier post, the problem with hearsay is that the party against whom it is being offered can’t effectively challenge its truth or falsity because it consists of a witness’ repeating what someone else said to him, outside of court. So if, say, in a murder trial Fred takes the stand and says, “Sheila told me the defendant committed the murder,” that’s hearsay. The attorney for the defendant can try to challenge Fred’s credibility with regard to whether not Sheila really told him that, but there’s no way the defense attorney can challenge Sheila’s credibility . . . because she isn’t there.

A recent Delaware case raised the as far as I know novel question of whether or not MapQuest printouts constitute hearsay. The case is Jianniney v. State, 2008 WL 5076466 (Delaware Supreme Court 2008). Here are the facts that led to Mr. Jianniney’s being convicted of the sexual solicitation of a child:
On February 28, 2006, Jason Baker [a pseudonym] was 13 years old and home from school on suspension. At about 11:30 a.m., he was working outside his house, in Glasgow Pines, Delaware, when a man, later identified as Christopher Jianniney, approached him and began talking to him. . . . did not respond, and went into his house. At about 6:00 p.m., as Baker was taking trash . . . to the curb, Jianniney approached him again. This time Jianniney offered Baker $40 if Baker would show his penis to Jianniney. Baker ran into his house and called his mother, who came home right away. Baker and his mother drove around the neighborhood in an unsuccessful effort to find the car that Jianniney drove away in-a rusty colored pickup truck with a white roof and Maryland license plates. Baker and his mother then reported the incident to the police.

In 2006, Jianniney lived with his parents, and worked as a driver for Wilson Fuel Services, in Elkton, Maryland. On February 28, 2006, Jianniney punched in at 7:59 a.m., made eight fuel deliveries, then returned to Wilson Fuel for his lunch break. He went out for afternoon deliveries and punched out for the day at 4:08 p.m. According to his father, Jianniney was home, having dinner and helping to clean up after dinner, from about 5:15 p.m. until well after 6:00 p.m.

But two other witnesses placed Jianniney on the street where Baker lived at 6:00 p.m. One neighbor, Cheryl Besteder, testified she saw Jianniney leave the house of another neighbor, Leland Brown, at about 5:30 p.m. and watched as he played basketball with some children on the street. Besteder had seen Jianniney in the neighborhood several times, and identified his car as being an older, brownish, pickup truck with a light top. Brown testified that Jianniney occasionally helped him work on his car, and Jianniney was supposed to come work on his car on February 28th. Brown said that he never saw Jianniney that day, because Brown fell asleep after he came home from work.
Jianniney v. State, supra.

The MapQuest evidence pertained to the testimony of another witness, a defense witness:
Jerry Wilson, owner of Wilson Fuel, testified about Jianniney's work schedule on February 28th. Using Jianniney's fuel delivery tickets, Wilson provided estimates of the time it would take to drive to each location and deliver fuel. Wilson based those estimates on his familiarity with the roads and delivery locations. He testified that Jianniney would not have had time to get to Baker's house by 11:30 a.m. after completing his morning deliveries. On cross-examination, Wilson acknowledged that he was familiar with MapQuest and had used that website to determine how long it would take to get from one place to another. After the trial court admitted a batch of MapQuest printouts of driving directions and driving times, the State compared the MapQuest time estimates with Wilson's time estimates. In several instances, Wilson estimated twice as much time as the MapQuest estimate.
Jianniney v. State, supra. The jury convicted Jianniney and he appealed.

As the Delaware Supreme Court noted, the “sole issue on appeal” was “whether the trial court . . . violated Jianniney's constitutional right to confront witnesses by admitting the MapQuest printouts.” Jianniney v. State, supra. The MapQuest printouts were hearsay because they were statements by an out of court declarant –MapQuest – offered to prove the truth of the matters they concerned. The trial court admitted the printouts under an exception to the hearsay rule. Rule 803 of the Delaware Rules of Evidence states that items falling into any of 25 categories “are not excluded by the hearsay rule”. Delaware Rule of Evidence 803. Each of the categories is based on a principle that justifies not excluding the evidence in question as hearsay.

The trial court admitted the MapQuest printouts under Delaware Rule of Evidence 803(17), which allows the admission of “[m]arket quotations, tabulations, lists, directories or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” The rationale underlying this exception to the general rule barring the admission of hearsay is “trustworthiness” deriving from “general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.” Advisory Committee Note to Federal Rule of Evidence 803.

The prosecution used the MapQuest printouts to impeach Wilson’s testimony, i.e., to show his time estimates were incorrect. To establish that the MapQuest printouts were admissible under Delaware Rule of Evidence 803(17), the prosecutor used Wilson’s testimony “that he was familiar” with MapQuest and “had used it.” Jianniney v. State, supra. During the appeal, the prosecution argued this was sufficient: “Wilson himself testified that he had used MapQuest before to obtain an estimate of the driving time between two points. Wilson's testimony was sufficient to establish that the public used and relied on the MapQuest information.” Appellee’s Brief, Jianniney v. State, supra.

The Delaware Supreme Court did not agree:
If the Mapquest printouts only identified streets, driving routes, and driving distances associated with those routes, Jianniney probably would not have objected to their admission. . . .

[H]owever, the Mapquest printouts were admitted for the truth of the website's driving time estimates. Yet the State offered no evidence that those estimates are relied upon by the public or professional drivers. Woods testified that he had used Mapquest at some unspecified time. That hardly establishes general use and reliance by the public. Moreover, Mapquest expressly disclaims the accuracy of its information:


* * *

Please note that the Materials may include technical inaccuracies or typographical errors. In addition, you may find that weather, construction projects, traffic conditions, or other events may cause road conditions to differ from the listed results.
Jianniney v. State, supra.

The Delaware Supreme Court held, therefore, that the record in the case “does not support a finding that the Mapquest travel time estimates” were properly admitted under Delaware Rule of Evidence 803(17). Jianniney v. State, supra. Notwithstanding that, it upheld the conviction:
We are satisfied that the trial court's error in admitting this evidence was harmless beyond a reasonable doubt. First, it was not particularly persuasive. Mapquest's estimates of driving times, as both Woods and Jianniney pointed out, failed to account for traffic, weather, time of day, or type of vehicle. Second, the Mapquest evidence, even if fully accepted by the jury, only established that it might have been possible for Jianniney to travel to Baker's neighborhood at 11:30 a.m. It did not address Jianniney's whereabouts at 6:00, when the crime was committed. Third, a disinterested witness saw Jianniney and his pickup truck on Baker's street at 6:00 p.m. Another disinterested witness testified that Jianniney was supposed to come by that day after work. This was not a close case, and the inadmissible evidence was only minimally prejudicial, if at all.
Jianniney v. State, supra.

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