Whether printed documents from a GPS monitoring center are admissible in a probation revocation hearing.

The defendant received both jail time and a probationary sentence after a number of assaults against his wife. His probation specified that he wear a GPS tracking device and remain at least 2000 feet from the marital home. On two occasions during the defendant’s probation, he went swimming, a violation of his probation terms because the GPS tracking device cannot receive a signal under water. On a third occasion, he twice entered the exclusion zone around the wife’s home, apparently for a period of less than a minute.

A judge of the District Court revoked the defendant’s probation on the basis of those infractions, as shown by GPS monitoring documents generated by the website sentinelmass.com, whose relationship with the probation department is unclear. The probation officer presenting the documents apparently lacked personal knowledge of the documents’ creation, or the exclusion zones they represented.

The defendant argues that he had the right to cross-examine the creator of the GPS monitoring documents. A defendant has the right to confront witnesses against him in a probation revocation hearing absent a finding of good cause. Good cause is shown if the evidence is substantially reliable and trustworthy.

In a published decision, 74 Mass. App. Ct. 773, the Appeals Court ruled that the documents were not hearsay, but rather were the results of a measuring device, analogizing them to the distance measurements obtained by computer mapping software in Commonwealth v. Whitlock, 74 Mass.App.Ct. 320, 326 (2009). The Court ruled in the alternative that, if the documents were hearsay, they were business records of the probation department. The SJC granted the defendant’s petition for further appellate review.

The defendant argues that the documents are neither business records, nor reliable, in that the probation officer “presented no evidence regarding the procedures followed or persons involved in documenting, creating, and/or maintaining the documents.”

The Appeals Court’s first conclusion, that the documents are not hearsay, is unsustainable. In Whitlock, the officer presenting distance measurements had himself used computer mapping software to measure distance. Thus, the measurement generated by the measuring device was presented in court by the person using the device. Here, the relevant measurement (the defendant’s location at a particular time) was recorded by one (apparently unknown) person, printed out, and given to a different person to present in court. The documents are hearsay.

Whether the documents are admissible as business records (or are substantially reliable and trustworthy, even if not falling into a conventional hearsay exception) is a closer case. The defendant observes that the documents are apparently prepared by a private contractor, rather than the probation department, and are to some extent prepared in anticipation of trial. Given their obvious value in maintaining the GPS system, the Court is likely to find that the records are admissible in some circumstances.  It is not clear, however, whether a sufficient foundation was laid for their admission in this case.