Is Time Hearsay?
That's a deep question. And I honestly don't know. I specifically remember Professor Flanagan talking about this exact question in evidence class, but I have no idea what he said the answer was. But I do have a theory.
Professor Colin Miller wrote an in depth blog post about this question in reference to stop signs a few years ago. He cited several different cases and articles that made an argument for both views (yes it is hearsay, no it's not).
If we imagine an old clock (not your iPhone), then some might argue that the hands on the clock are hearsay. A person built the clock and adjusted the timing so that it the hands would say something at different times. Others argue that the clock is just producing a "mechanical trace."
A “mechanical trace” [is] designed to show that at some previous time a certain act was or was not done. A “mechanical trace,” thus, is a type of circumstantial evidence.
United States v. Snow, 517 F.2d 441, 443 (9th Cir. 1975) (citation omitted)
Authentication vs. Hearsay
The Fourth Circuit has given some direction to this issue. In U.S. v. Washington, the government wanted to introduce blood results of the defendant which contained PCP. The government's expert witness looked at the print out reports that he received from the drug analysis that showed PCP was present. These printouts were not reports or written by a human. The defense objected because those print outs would be hearsay because the expert witness merely looked them over and did not actually create those results. The court declined to view the print out results as hearsay. Rather, they concluded that the results were from a machine and an actual human being has to give a statement for hearsay to get involved. They further stated that the most appropriate Rule of Evidence to focus on, would be 901 and authentication.
Thus, we reject the characterization of the raw data generated by the lab's machines as statements of the lab technicians who operated the machines. The raw data generated by the diagnostic machines are the “statements” of the machines themselves, not their operators. But “statements” made by machines are not out-of-court statements made by declarants that are subject to the Confrontation Clause.
The lab technicians' role was simply to operate the machines.
Finally, the supposed “hearsay statements” made by the machines were not “testimonial” in that they did not involve the relation of a past fact of history as would be done by a witness. The machine's “statement” relates solely to the present condition of the blood, without making any links to the past.
Any concerns about the reliability of such machine-generated information is addressed through the process of authentication not by hearsay or Confrontation Clause analysis. In other words, a foundation must be established for the information through authentication, which Federal Rule of Evidence 901(b)(9) allows such proof to be authenticated by evidence “describing [the] process or system used to produce [the] result” and showing it “produces an accurate result.”
United States v. Washington, 498 F.3d 225, 230-232 (4th Cir. 2007)
The rule I get from this case
It does appear that this case is narrow in its holding. The data/conclusion must be solely based on a machine's work. Hearsay might become implicated if a person in some way has input to the either the final conclusion or has input during the process that could affect the conclusion.
When information provided by machines is mainly a product of “mechanical measurement or manipulation of data by well-accepted scientific or mathematical techniques,” reliability concerns are addressed by requiring the proponent to show that the machine and its functions are reliable, that it was correctly adjusted or calibrated, and that the data (in this case, the blood) put into the machine was accurate.
United States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007)
Another way I like to look at it is based on the Ronco Rotisserie and BBQ infomercial. The slogan for that machine was: "Set it and Forget it!" You put the chicken in the machine, set the time, and wait for the results. This is somewhat analogous to the holding of Washington.
Examples of Time
While this can get very complicated it is easy to overthink the issue. Let's look at several examples to see how the issue can come up.
-Witness is on the stand and testifies, "I looked up and saw the clock said 3:30. I knew I was late, so I ran out the door."
This would not be hearsay because the witness is not trying to prove the truth of the time. Rather, the witness is just showing that they believed it was 3:30 and that time had an effect on them. It doesn't matter whether or not the clock was accurate.
-Defendant is charged with Burglary 1st, which in this case required that the burglary occur at nighttime. Witness is on the stand and states that "I looked at the clock and it said 11:00 PM. I then saw the defendant break down my door."
This is where hearsay could be implicated. The time of the clock is important, and it is being offered for the truth. Does this fall under U.S. v. Washington? Maybe. If the witness says he looked at his iPhone, then a court could consider that to be a completely machine based conclusion. The witness might need to authenticate the iPhone and prove that he cannot adjust the time as well as that the phone was properly working that night. But that would be under 901 and authentication, not hearsay.
-What if the witness says he looked up at the clock on the wall and it said 11:00 PM, and that this clock is an old analog clock?
Is this hearsay now? Do we need the manufacturer or the person who updates the time in court? Possibly. Imagine under this scenario that the judge lets in the statement as not hearsay for the same reasons as the iPhone. However, it turns out that the witness's roommate had actually entered the room several hours prior and adjusted the clock ahead by 6 hours to make a statement to his roommate that he was upset that he was staying up so late at night. This shows that authentication and hearsay can sometimes blend together. (Don't forget: the witness can still testify to his observations about whether or not it was nighttime, e.g., it was dark outside, I watched a TV show that comes on at 11, I was tired, etc.).
So, is time hearsay? I have no idea. 🤷♀️