Reference Guide to Emerging Technologies to Implement NEPA

1. What are the some of the potential evidentiary issues associated with using remote sensing and other digital earth science information in a court of law?

Daubert v. Merrell Dow Pharmaceuticals, Inc. held that the Federal Rules of Evidence (FRE) only admits relevant and reliable scientific evidence. To determine relevance, the Court examined Rule 104(a) and Rule 702. Rule 104(a) allows courts to inquire about the admissibility of evidence, whereas Rule 702 discusses the role of the expert regarding scientific and technical information. While experts should explain remote sensing data given the complex scientific and technical nature of the data, the data can be admitted independently. Under Rule 104(a), the Daubert Court mandated that admitted scientific information apply to the facts in issue. And under Rule 702, the Court required that the evidence "assist the trier of fact to understand the evidence or to determine a fact in issue." Remote sensing data can easily meet these "relevant" criteria by relating to and helping articulate the particular fact in issue.

Meeting the "reliability" element of the Daubert categorization is not so simple. Analyzing Rule 702, the Daubert Court found that scientific validity establishes a standard of reliability.

To determine scientific validity, the Court suggested five criteria:

1. whether the information is derived by the scientific method,
2. whether the information has been subjected to peer review or publication,
3. whether the relevant scientific community "generally accepts" the information,
4. consideration of the actual or potential rate of error of the scientific technique, and
5. whether standards for controlling the technique's operation exist.

In creating guidelines for the admission of scientific evidence, the Daubert Court emphasized "principles and methodology, not the conclusions that they generate." The Court envisioned a flexible inquiry, explicitly stating that many factors control the admission of evidence and that its suggested criteria were not definitive.

Despite the tremendous opportunity for technologies to enable more informed, cost-effective decisions, issues of credibility, acceptability and other evidentiary hurdles are impeding the integration of these technologies into the routine operations performed by public and private environmental stewards. Until scientists and attorneys work together to educate triers of fact to develop protocols for general acceptance, courts will be reluctant to work through the associated complex science and mathematics necessary to assign evidentiary value to the information. Thus, uncertainty about the information's viability in court will stifle the growth of the commercial remote sensing markets and delay the development of applications that will confirm remotes sensing and digital information systems can greatly improve environmental management.

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2. How do the Federal Rules of Evidence treat the use of remote sensing information?
Since several FRE govern specific aspects of the remote sensing process, such as rules involving computer evidence, courts will focus on the errors associated with them. The implications of these rules on the remote sensing evidence are considered individually below.

Computer Error: Courts will review the admissibility of remote sensing data as computer evidence. Rule's 803(6) and 803(8) respectively govern the admissibility of business and public records generated by computers. As for potential flaws, courts will consider "computer programming errors, equipment malfunction, data entry errors, and the volume of electronic data." Some courts, following older case law, will also require identification of the "computer program's original source, and procedures for input control including tests to assure accuracy and reliability." Hence, remote sensing experts should expect courts to inquire about these factors, such as whether environmental conditions might have damaged equipment or if standard tests exist to test computer accuracy.

Authenticity: Courts will also consider the evidence's authenticity, which is commonly established chain of custody, or records that where it comes from, who touched it. Some courts, following Rule 901(a), require proof that the evidence is what its proponent claims it to be. And according to Rule 901(b)(9), parties must prove that evidence that encompasses a process or system, such as remote sensing evidence, produced an accurate result. To satisfy these rules, the experts who processed the remote sensing data should describe their involvement with the data. Experts should also reference the data to ground information, aerial photographs, and other maps. Moreover, experts could invoke Rule 406 and demonstrate a satellite's routine orbit and functions. Logs and records of the data progression from collection to presentation would also verify authenticity.

A legal map encompasses three elements. First, a map must be relevant, meaning that it must make a consequential fact more or less probable. If used to aid witness testimony, the map must help the trier of fact understand the testimony. Second, a map must be authentic. Extrinsic authentication is necessary unless the map fulfills an exception listed in Rule 902 of the Federal Rules of Evidence. A government map, for instance, is self-authenticating under Rule 902(5). Finally, a map must be accurate and reliable. If its accuracy can not be confirmed, courts will not admit it.

The main evidentiary hurdle for digital maps is reliability. Courts will ask where the information in the map originated, how the information was transformed into digital form, and how the map itself was created. Since computers create digital maps, the maps will face reliability challenges as computer evidence. Courts, for instance, will inquire into "computer programming errors, equipment malfunction, data entry errors, and the volume of electronic data." Furthermore, because computer evidence is subject to hearsay objections, courts might do the same for digital maps.

Data Characterization: Another error category that courts will examine involves the presentation of data in the courtroom. Rule 1006 allows the admission of charts, summaries, and calculations into evidence. Since remote sensing data will likely be described in one or more of these forms, experts can expect challenges to their authenticity and accuracy. These challenges are refutable by employing the same suggestions given in the previous paragraph. Experts should also testify that the data was correctly translated into these forms. If the evidence is admitted without an expert, Rule 1002 requires the admissibility of the original data underlying the chart or summary. For example, if a chart includes data from satellite photos, courts and opposing attorneys could require admission of the original satellite photos from which the data used in the chart was obtained.

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The materials on this Web site were developed by Ken Markowitz as part of a presentation at the ALI-ABA Course of Study: Environmental Impact Assessment: NEPA (National Environmental Policy Act) and Related Requirements, December, 2001, Washington, DC.