Expert Testimony Based On Satellite Imagery

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In conspiracy to defraud trial, admitting expert testimony based on satellite images of land the defendant claimed to have planted as a basis for collection of crop disaster payments; under FRE 702, the government "demonstrated the general acceptance in the scientific community" of the use of satellite imagery to "determine if fields had been vegetated, were without crops, or had been recently tilled or cultivated," in United States v. Fullwood, 342 F.3d 409 (5th Cir. Aug. 8, 2003) (No. 02-10840)

The Federal Evidence Blog has previously noted the acceptance of satellite data as a basis for evidence of what is occurring on earth. See, e.g., Authenticating Global Positioning System Device And Data (assessing First Circuit case dealing with authentication of GPS satellite data); Appellate Judicial Notice Using Google Map (concerning Tenth Circuit use of Google Map's Distance Measurement Tool for determining locations of parties in the suit). While showing the ready acceptance of satellite data under FRE 901 and FRE 201, we have yet to examine the assessment of satellite data under FRE 702 as a basis for expert testimony.

Challenging Satellite Data

The Fifth Circuit previously considered the appeal of a defendant who was convicted of a variety of federal crimes. The defendant had "made fraudulent claims based on acreage he did not plant ... for crop disaster payments from the FSA," asserting that "hail and excess precipitation damaged his cotton crop," which in reality he had never planted. He ultimately obtained over $235,000 in compensation for damage to crops that he had not grown.

As part of its proof that the defendant had no crops which were damaged as a basis of collecting FSA payments, the government submitted "expert testimony" which "was based on satellite imagery." According to the expert's trial testimony:

based upon satellite imagery, he could determine if fields had been vegetated, were without crops, or had been recently tilled or cultivated. His testimony was offered to show that satellite images of farms where Fullwood claimed to have planted certain crops revealed that the crops were not planted on the dates claimed by Fullwood.
Fullwood, 342 F.3d at 411-12.

The expert testified as well that not only did the defendant not plant the crops claimed, but that some of the land on which he claimed crops had been damaged "had not been plowed." Apparently the expert witness had never personally seen the land involved in the defendant's scheme. His testimony was based on the data he interpreted from the satellite images.

Satellite Remote Sensing Of Ground Conditions

The decision to admit the government expert's testimony was aided by the fact that the defendant had simply made "conclusory" objections which were "without merit." The defendant acknowledged that the expert's "credentials are substantial (including a Ph.D. in horticulture and numerous publications)." The circuit also noted that the defendant's claims that there was "too great a gap between the premise of satellite imagery, as it relates to crop cultivation," and the conclusions reached by the expert as to whether the defendant had the crops he had claimed to have lost.

The circuit dismissed the notion of a gap -- that the expert's "testimony was [not] within the area of expertise established." Fullwood, 342 F.3d at 412. First, it noted that the government had provided the trial judge with "a detailed ... list of 16 articles, all published in peer-reviewed scientific journals, which demonstrated the general acceptance in the scientific community of the techniques used by Dr. Brown." Second, the government pointed out that the Eighth Circuit had already "upheld the admission of Dr. Brown’s testimony in a similar case." Fullwood, 342 F.3d at 412 (citing United States v. Larry Reed & Sons P’ship, 280 F.3d 1212, 1215 (8th Cir. 2002)). Finally, the expert's own testimony at the defendant's trial that "the remote sensing technology he employs 'has been around for several decades'; his techniques are used '[e]very day' by science, industry, and government; and there have been 'hundreds of investigations that have been conducted, probably thousands', validating his methodology." Apparently the defendant presented no evidence that contradicted this testimony.

Conclusion

The Fullwood case provides an early example of the extent to which satellite data is becoming common place and generally accepted, as well as protocols for interpreting the data transmitted by satellite. The case provides an ample demonstration of the burden that may have to be assumed by a party who challenges expert testimony based on remote sensing technology.

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Federal Rules of Evidence
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