At the Intersection of Fourth and Sixth: GPS Evidence and the Constitutional Rights of Criminal Defendants – Note by Tim Kolesk

From Volume 90, Number 6 (September 2017)

This Note seeks to address how the sprawl of GPS technology in our lives has permeated into the courts and affected the rights of criminal defendants. The first Part provides general background about the technology and its broader role in the court system, while the second Part examines GPS and the law. The second Part will look at the rules of evidence and the hurdles––however minimal––that GPS evidence may need to overcome when admitted at trial. Because GPS technology, while common, is still subject to errors and tampering, the evidence should be required to be properly authenticated. A GPS record can be––and has been––viewed as a kind of a statement, reporting where a particular person was at a particular time. For this reason, courts have considered the evidence through hearsay analysis and admitted it through the business records exception. Additionally, the second Part discusses the constitutional issues that arise with the introduction of GPS evidence. Specifically, the Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to cross-examine the person who makes a report submitted at trial. GPS data can be considered a statement against a criminal defendant, about where the defendant was at a particular time––e.g., when a crime was being committed. The issue becomes whether a criminal defendant is entitled to “confront” the makers of these statements. Finally, the third Part of this Note concludes with concerns of how to properly deal with GPS tracking technology, considering how far it can reach, in light of the general public’s seeming non-concern with the level of government use of it. The fact that most of us carry GPS-enabled smartphones in our pockets every day gives rise to questions about the government’s ability to track us and what procedural safeguards should be maintained when evidence from these devices is admitted against an individual at trial.

Ultimately, this Note will conclude that when GPS evidence presents a hearsay issue––which involves any human intervention that can alter the data––then the limits of the public records exception to hearsay and the Confrontation Clause are serious and cannot be avoided, because the hearsay at issue is being produced by law enforcement (or agents of law enforcement) and is arguably testimonial. When it comes to GPS tracking data, the criminal defendant should have the right guaranteed by the Confrontation Clause: the ability to cross-examine the person who prepared the report. Despite the erosion of privacy rights, procedural safeguards may at a minimum keep a debate alive about how GPS technology is used in our court system.