{"id":2181,"date":"2014-06-23T20:46:42","date_gmt":"2014-06-23T20:46:42","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=2181"},"modified":"2019-03-08T19:52:28","modified_gmt":"2019-03-09T00:52:28","slug":"cyborgs-in-the-courtroom-the-use-of-google-glass-recordings-in-litigation","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2014\/06\/23\/cyborgs-in-the-courtroom-the-use-of-google-glass-recordings-in-litigation\/","title":{"rendered":"Cyborgs in the Courtroom: The Use of Google Glass Recordings in Litigation"},"content":{"rendered":"

\"pdf_icon\"DownloadPDF<\/a><\/p>\n

Cite as: Kristin Bergman, Cyborgs in the Courtroom: The Use of Google Glass Recordings in Litigation<\/i>, 20 Rich. J.L. & Tech. 11 (2014), http:\/\/jolt.richmond.edu\/v20i3\/article11.pdf.<\/p>\n

Kristin Bergman*<\/b><\/p>\n

I.\u00a0 Introduction<\/strong>\u00a0<\/b><\/h2>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The future is now. \u00a0Wearable computers such as Google Glass (Glass) have begun entering society\u2014we see people wearing these devices on the streets, in classrooms, at parties, and elsewhere. \u00a0Though most of these devices are not yet available to the public at large, there has been much hype over the impact Glass will have on our interactions, privacy, safety, and more. \u00a0Although this Article will briefly address such controversial aspects, it will focus more narrowly on the potential utility of Glass in litigation.<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Despite the fear that Glass will somehow destroy the world, Glass, and its counterparts, could revolutionize litigation for the better. \u00a0Google Glass is a wearable computer device featuring an optical head-mounted display.[1] \u00a0These glasses allow wearers to make phone calls, record videos, and run Google searches, in addition to other tasks, through voice commands and a small touchpad.[2] \u00a0First-person point of view recordings taken by Glass will provide valuable evidence to supplement witness testimony by placing the trier of fact\u2014whether judge or jury\u2014in the witness\u2019 shoes.[3] \u00a0These recordings can help resolve problems of witness credibility, including bias and memory issues, and will provide more useful evidence than recordings from devices like traditional cameras and cell phones.<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This Article will begin by exploring the evolution and features of Glass and other wearable computers. \u00a0It will then speak to the particular utility of Glass recordings with focus on the inconspicuousness, accessibility, and first-person perspective, additionally describing prospective uses for Glass\u2019s recording feature. \u00a0This Article will proceed to address how these Glass recordings may be used in litigation and the potential legal obstacles to admitting these recordings as evidence in court. \u00a0It will conclude by briefly recognizing how Glass could have been influential in prior cases.<\/p>\n

 <\/p>\n

II.\u00a0 Background<\/b><\/h2>\n

A.\u00a0 An Introduction to Google Glass<\/b><\/h3>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Developing out of Google[x]\u2019s Project Glass,[4] Google Glass is a wearable computer device featuring an optical head-mounted display.[5] \u00a0The glasses are lens-free with a rectangular display sitting directly above one\u2019s right eye, next to an embedded camera, with a touchpad and microphone on the right arm of the frame.[6] \u00a0The latest version is compatible with prescription eyeglasses or sunglasses, and includes a removable ear-bud.[7] \u00a0These augmented reality[8] glasses will allow wearers to send messages, take photos and record videos, run Google searches and translations, look up directions and the weather forecast, and more\u2014all with simple voice commands or a light finger tap or swipe.[9] \u00a0According to Google Co-founder Sergey Brin in a TEDTalk[10] in early 2013, Project Glass was motivated by an interest in improving the connections between people, freeing one\u2019s eyes and hands to reduce social isolation.[11] \u00a0In this way, Glass is meant to minimize the moments individuals miss by virtue of having their heads down and hands occupied by cell phones, cameras, and other devices.[12] \u00a0Glass is meant to, instead, overlap digital information and reality. \u00a0Babak Parviz, one of the creators of Google Glass, expanded on this concept, emphasizing the importance of rapid access to information and expressing a hope that Glass would be \u201c\u2018the major next thing in computing and communication.\u2019\u201d[13]<\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Google Glass was initially introduced to the public through a limited release called the Explorer Program.[14]\u00a0 In February 2013, Google accepted applications for the Explorer Program, in which those interested in testing out Glass submitted a short statement of what they would do if they had the device.[15]\u00a0 Those selected to participate\u2014roughly 8,000 individuals\u2014were invited to purchase Glass for $1,500.[16]\u00a0 Since this initial round of production, in October 2013 Google expanded its consumer base by allowing all Explorers to invite three friends to join the Explorer Program, essentially quadrupling the size of the Program.[17] It also held a single-day public sale of Glass in mid-April 2014.[18]<\/p>\n

B.\u00a0 The \u201cTech\u201d Behind Google Glass<\/b><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 To best contemplate the utility of Google Glass it is important to have a sense of its capabilities and reliability, and, accordingly, this Article will address some of Glass\u2019s relevant specifications and known security vulnerabilities.[19]\u00a0 Glass can function without being connected to a network, but many of its features are only supported when connected to a cell phone or home network via Wi-Fi and\/or Bluetooth.[20]\u00a0 The device can store up to twelve gigabytes of information.[21]\u00a0 In terms of images and video, Glass has a 5MP (five megapixel) camera situated right above the right side of the user\u2019s right eye that can film video up to 720p (high definition).[22]\u00a0 By default, videos will record for ten seconds, but this duration can be extended for as long as the user would like.[23]\u00a0 After recording videos and other media, users can upload and share instantly over Google+ or YouTube, as well as manually transfer the media through the Micro-USB port.[24]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Despite its limited availability, some vulnerabilities have already been discovered.\u00a0 For example, during the summer of 2013 a security company discovered a threat to Glass from the malicious use of Quick Response (\u201cQR\u201d)[25] codes.[26]\u00a0 As Glass had been set to automatically execute QR codes when the camera feature was in use, a QR code could force the device to connect to a designated Bluetooth device or Wi-Fi network, or to view a particular website.[27]\u00a0 In addition, as with computers, it may be possible for third parties to \u201croot\u201d a device\u2014obtaining total control over the device\u2019s system\u2014to plant code or spy on the stored data.[28]\u00a0 This said, at this time photos and videos cannot be substantively altered from the device itself (aside from deleting), though once uploaded to the cloud or a computer hard drive these materials function no differently than other digital media.[29]\u00a0 All things considered, Glass is a relatively secure device that produces decent quality recordings.[30]<\/p>\n

C.\u00a0 Counterparts to Google Glass<\/b><\/h3>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Although this Article will focus on Google Glass, it is important to recognize that Glass is not the only wearable computer that may appear in the market over the coming years.\u00a0 Unsurprisingly, Google\u2019s primary competitors in this market will likely be Apple, Samsung, and Microsoft. \u00a0As of May 2014, Microsoft was reportedly testing prototypes for eyewear similar to Glass,[31] and Samsung has applied for two patents in Korea for an electronic type of sports glasses with integrated earphones and the \u201cEarphone,\u201d an ear-mounted computing device strinkingly similar to Glass.[32]\u00a0 Apple holds a patent for \u201cperipheral treatment for head-mounted displays,\u201d but has not made any announcements regarding its particular device.[33]\u00a0 Google even faces competition overseas from French startup Optinvent, whose digital eyewear platform, ORA-1, is already available for pre-order.[34]\u00a0 Other devices may also operate similarly to Glass, but have a specialty purpose such as athletic performance or business use.[35]\u00a0 The exact specifications for most of these devices have not yet been revealed, so it is difficult to project precisely how similar they will be to Glass.\u00a0 Nevertheless, all appear to include some point of view recording feature on a hands-free device, such that the arguments and projections made in this Article should be applicable to all.<\/p>\n

\u00a0<\/b>D.\u00a0 Popularity of Glass<\/b><\/h3>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There has been much speculation over the prospective popularity of Glass, and whether the mass interest in the device that continues to build online will translate into Glass sales and use.\u00a0 Some suggest that it may more or less disappear from popular culture within a decade.[36]\u00a0 Apple CEO Tim Cook is among these skeptics, believing that consumers want wearable devices to be light, unobtrusive, and fashionable, and that Google Glass may be targeting the wrong part of the body.[37]\u00a0 This is supported by a survey conducted by Bite Interactive suggesting that only ten percent (10%) of Americans would definitely purchase and wear Glass.[38]\u00a0 Alternatively, Robert S. Peck, a financial analyst of SunTrust Robinson Humphrey, projected that the business would be worth over three billion dollars a year by 2017.[39]\u00a0 In a similar vein, Google Glass was ranked as the United Kingdom\u2019s most anticipated gadget of 2014 in a survey conducted by the Gadget Show<\/i>.[40]\u00a0 Which side of this debate will prevail is impossible to predict, though there appears to be more support for the proposition that Glass will catch on and have a significant impact on society, particularly if the price falls in a reasonable range, potentially comparable to that of a tablet.[41]\u00a0 We will have to until late 2014 for an answer, once Glass is actually released into the market for the general public.[42]<\/p>\n

 <\/p>\n

III.\u00a0 The Utility of Glass Recordings<\/b><\/h2>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 Over the last several decades, the inherent weaknesses of witness credibility have come to increasing light.\u00a0 Google Glass recordings, if used to supplement eyewitness testimony, could help to resolve many of these intrinsic concerns about memory and bias that undermine the reliability of witness testimony.\u00a0 Though other video recordings may do the same, the design and function of Glass makes this device uniquely situated with respect to other videos\u2014namely its first person perspective, inconspicuousness, and accessibility.<\/p>\n

A.\u00a0 Witness Credibility<\/b><\/h3>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Though we now point to scientific studies for such a proposition, recognition of the faultiness and limitations of witness testimony was pervasive in court decisions that predated such studies.\u00a0 Many people, even judges, can simply invoke common sense, intuition, and hindsight to acknowledge that eyewitness accounts are not\u2014and cannot be\u2014perfect.\u00a0 This is point has been enunciated in statements made by Supreme Court justices.\u00a0 To offer just a sample:<\/p>\n

\u201cThe vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.\u201d[43]<\/p>\n

\u201cThe crux of the Wade <\/i>decisions, however, was the unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification testimony. \u00a0This, combined with the fact that juries unfortunately are often unduly receptive to such evidence, is the fundamental fact of judicial experience ignored by the Court today.\u201d[44]<\/p>\n

\u201cWhat is the worth of identification testimony even when uncontradicted? \u00a0The identification of strangers is proverbially untrustworthy. \u00a0The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. \u00a0These instances are recent-not due to the brutalities of ancient criminal procedure.\u201d[45]<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 The limitations of eyewitness testimony, as recognized by these justices and many others, primarily fall into two categories: (1) the natural fallibility of an individual\u2019s perception and memory; and (2) the mind\u2019s vulnerability with respect to suggestive influences.[46]\u00a0 This is particularly clear when considering the work of psychologist Elizabeth Loftus.[47]\u00a0 She has studied the human mind, noting how one\u2019s memory functions from perception through reconstruction:<\/p>\n

Early on . . . the observer must decide to which aspects of the visual stimulus he should attend. \u00a0Our visual environment typically contains a vast amount of information, and the proportion of information that is actually perceived is very small. . . . Once the information associated with an event has been encoded or stored in memory, some of it may remain there unchanged while some may not. \u00a0Many things can happen to a witness during this crucial retention stage<\/em>.[48]<\/p>\n

\u00a0In this way, Loftus recognizes some prominent weaknesses in a witness\u2019 memory which would affect the strength of his testimony, supported by countless other empirical studies:[49] (1) an observer cannot possibly take in all of the information available in a scene; and (2) an observer\u2019s memory may shift over time, including what may naturally be forgotten and what may be reconstructed from suggestive procedures.[50]<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 Such reliability problems can be significant, particularly given the great deal of weight juries place on witness testimony.\u00a0 Recent studies have shown that mistaken witness identification was involved in over seventy-five percent (75%) of some hundreds of exonerations (based on DNA testing after a conviction).[51]\u00a0 Although the use of Glass cannot resolve all of these problems in every case that comes before a court, increased availability and pervasive use of Glass will produce recordings by witnesses that will address these memory limitations.\u00a0 Glass recordings will be able to corroborate an individual\u2019s testimony, and the availability of such a recording\u2014which can presumably be accessed and viewed at any time\u2014may eliminate a witness\u2019 susceptibility to other suggestive influences.<\/p>\n

B.\u00a0 Distinctiveness of Google Glass<\/b><\/h3>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 In addition to the corroborative value of the unbiased recordings, Glass, as a device and for the recordings it produces, is distinctively useful.\u00a0 Certainly, cameras, cell phones, and tablets are mobile and can record videos.\u00a0 However, Glass features unique qualities that will produce superior evidence to these other electronics\u2014Glass has a point-of-view camera on a headset and is a relatively inconspicuous and accessible device.[52]<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 First, Glass\u2019s camera is fixed on the right side of the glasses, just above the wearer\u2019s right eye.\u00a0 This allows for simple mobility and a first person perspective.\u00a0 As technology journalist Kashmir Hill noted when considering the possible use of Glass in capturing the traffic signals in a felony vehicular manslaughter case: \u201cDespite the fact that there seem to be surveillance cameras everywhere, they often seem not to capture all that we wish they would.\u00a0 But humans wearing cameras would have an advantage over surveillance cameras: the innate ability to turn their heads to look at something important or interesting.\u201d[53]\u00a0 As these cameras are effectively headgear, they are as mobile as any witness and more stable than a cell phone.[54]\u00a0 They can capture any incident on film as quickly as the wearer can adjust his head, unlike stable, pre-programmed surveillance cameras.\u00a0 In addition, the footage allows viewers later on to literally see the witness\u2019 point of view.\u00a0 Such a first-person point of view will place the jury\u2014or judge\u2014in the witness\u2019 shoes, seeing as much as the witness did.\u00a0 These jury members may notice things the witness never did, or things he has since forgotten.\u00a0 They will experience the scene for themselves, allowing them to rely less on oral testimony, which may be biased, altered, or incomplete.\u00a0 As such, Glass recordings will be more helpful, reliable, and satisfying than witness testimony or other recordings.[55]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 Second, Glass is more accessible than other electronic devices that may record video.\u00a0 As mentioned above, the camera is built into a headset.\u00a0 In this manner, it is already out and available for immediate use.\u00a0 In addition, it can start recording nearly instantaneously; a voice command of, \u201cOk glass, record a video\u201d will start the recording process.[56]\u00a0 This ready placement and voice activation means that recording can start in a matter of seconds, providing almost instant footage depending on the wearer\u2019s reaction time.[57]\u00a0 Even someone with a cell phone or camera relatively available in his or her pocket or purse cannot begin to record video with such speed.\u00a0 In addition to how quickly recording can begin, Glass is uniquely accessible because it is hands-free. \u00a0Indeed, this is one of the selling points for Glass\u2014you can \u201c[r]ecord what you see. Hands free.\u201d[58]\u00a0 Their promotional video and website suggest how useful this can be when engaging in sports, dancing, playing instruments, and doing construction.[59]\u00a0 The key is that Glass frees up the wearer\u2019s hands for other uses.\u00a0 As the Glass wearer may be in the center of the action or even just moving quickly, it may simply be challenging to hold and use a phone or camera.\u00a0 Furthermore, Glass will encourage people to record a video in situations during which they may otherwise have felt unsafe or uncomfortable to do so, because they will still have full mobility.[60]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 Lastly, the recording feature on Google Glass is relatively inconspicuous.\u00a0 Though wearing Glass will likely catch the eye, the difference between when Glass is off and when Glass is on and recording is fairly subtle.\u00a0 Though there are some rumors of an infrared light, in its current edition, there are two main ways for someone to tell if Glass is recording: (1) the small screen is illuminated when it is in use, such as when the user is taking a picture or recording a video, though it does not distinguish such activity from simply looking up directions or running a Google search; and (2) users have to either speak a command or press the touch pad on the side of the frame in order to record a video.[61]\u00a0 Particularly when Glass first enters the market, it seems unlikely that the general public will be attuned to these fine details.\u00a0 In addition, depending on lighting, it may be difficult to tell if the screen is illuminated, and it is fairly simple to pass off a tap of the touchpad as scratching one\u2019s head or tucking some hair beyond your ear.\u00a0 In these ways, someone wearing Glass could simply record a scene without the immediate awareness of those present.\u00a0 In this way, using Glass as a recording device is less likely to draw attention than using a camera, or even a cell phone.\u00a0 Chris Barrett, a filmmaker and Explorer who captured the first arrest on Glass, has already experienced this.[62]\u00a0 At the Jersey Shore to watch a fireworks show, he was able to record a fight that broke out, through to the eventual arrest of the participants.[63]\u00a0 Barrett acknowledged the crucial role Glass\u2014as opposed to a cell phone\u2014played in recording this break out, saying, \u201cI think if I had a bigger camera there, the kid would probably have punched me. . . . But\u00a0I was able to capture the action with Glass and I\u00a0didn\u2019t have to hold up a cell phone and press record.\u201d[64]\u00a0 This precise inconspicuousness will lead to more recordings, which\u2014privacy concerns aside\u2014will provide evidence that has previously been unobtainable.<\/p>\n

C.\u00a0 Prospective Uses<\/b><\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 The uses for Google Glass in general are endless, and countless of these uses may involve activity that will be the subject of litigation.\u00a0 The most predictable scenarios involve physical activities that may [at least appear to] occur more or less spontaneously\u2014rioting, fights, trespass, robberies, and even sexual violence.\u00a0 In fact, Glass has already been used to capture an instance of domestic violence.[65]\u00a0 Glass recordings may also be especially useful in handling traffic violations; using Glass allows for immediate coverage of traffic accidents\u2014from those involved and onlookers alike\u2014speedy documentation of license plates during hit-and-runs, and more.\u00a0 Glass could also be used by responders in documentation of an emergency; for example, as one fire chief who is part of the Explorer program noted with respect to using Glass while responding to a fire, \u201c[p]hoto evidence is more reliable\u201d than relying on memory or digging through ashes.[66]\u00a0 On the other side, any individual may use Glass to record officers and other government officials who respond to emergencies and crimes, essentially monitoring their conduct\u2014particularly police searches and arrests.[67]\u00a0 Glass has already made its way into operating rooms, and the recordings taken by the attending surgeon would surely be invaluable in medical malpractice cases.[68]\u00a0 It is even foreseeable that the increased production of family \u201chome\u201d videos, which one of Google\u2019s founders expressed delight in,[69] could be later used as evidence in custody battles.<\/p>\n

 <\/p>\n

IV.\u00a0 Using Glass Recordings in Litigation<\/b><\/h2>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 In addition to addressing the utility of Glass recordings in litigation, it is important to recognize any hurdles that may complicate or obstruct the introduction of these recordings as evidence in a trial or hearing.\u00a0 Overall, it is unlikely that any federal evidentiary rules or their state equivalents will prevent the admission of Glass photos or recordings into evidence during litigation.[70]\u00a0 Some rules may ultimately serve as obstacles to admission, though these rules would not be unique to records produced by Glass or other wearable computers.\u00a0 In addition, individual state recording laws may limit the introduction of some Glass-produced videos, and efforts to address privacy concerns surrounding Glass may prevent the production of these videos for litigation in the first place.<\/p>\n

A.\u00a0 Introduction of Glass Recordings as Evidence<\/b><\/h3>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 The introduction of a Glass recording as evidence would be simple\u2014much like the introduction of another video during trial.\u00a0 Having prepared the video as any other exhibit, during the testimony of the relevant witness an attorney need only play the video recording\u2014at an appropriate time during the questioning\u2014have the witness authenticate the video clip by acknowledging its accuracy, and then offer the video into evidence.<\/p>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 At a demonstration trial at the Court Technology Conference 2013 in Baltimore, Maryland, the Center for Legal and Court Technology (CLCT) contemplated this use, through a Glass-like wearable recording device that is based on the shoulder rather than the face.[71]\u00a0 In this personal injury case, the two parties were pulled over on the side of the road, and as the defendant exited her vehicle, she turned on the device and began recording the altercation that would later become the subject of litigation.[72]\u00a0 As the CLCT\u2019s script contemplated, the relevant portion of the direct examination and introduction of evidence may proceed as follows:<\/p>\n

Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0Did you have occasion to record that attack?<\/p>\n

A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes<\/p>\n

Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 How and why?<\/p>\n

A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I work for a company, Miracle Vision, that is making a personal video communicator a bit like Google Glass.\u00a0 I was wearing a unit on my right shoulder, and I turned it on when I got out of my car.\u00a0 I knew that I should make a record of what happened.<\/p>\n

Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And did you record it?<\/p>\n

A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes, but it failed after a few seconds.\u00a0 I think that I hadn\u2019t kept it fully charged.<\/p>\n

Counsel, with judge\u2019s permission, plays Defense Exhibit A.<\/b><\/p>\n

Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Was that an accurate recording?<\/p>\n

A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n

Counsel offers Exhibit A into evidence.<\/b>[73]<\/b><\/p>\n

The video clip depicted the plaintiff exiting her own vehicle and approaching the defendant while raising a baseball bat\u2014valuable evidence to support the defendant\u2019s claim of self-defense.\u00a0 With no other evidence other than oral testimony to indicate who initiated the fight, the video recording in this \u201che said, she said\u201d scenario\u2014as presented in much litigation\u2014becomes a central piece of evidence in an unclear case.\u00a0 Glass recordings will be able to provide this same insight and clarity.<\/p>\n

B.\u00a0 Evidentiary Hurdles<\/b><\/h3>\n

1.\u00a0 ESI and Existing Evidence Rules<\/b><\/h4>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 As Glass recordings are stored in the cloud, they will likely be treated as electronically stored information (ESI) and after meeting basic evidentiary requirements would be admissible.[74]\u00a0 There are surprisingly few decisions dealing with the admissibility of ESI, but of those that exist, Judge Grimm\u2019s opinion in Lorraine v. Markel American Insurance Co.<\/i>[75] <\/i>before the United States District Court for the District of Maryland best articulates the relevant rules for evaluating ESI.[76]\u00a0 Noting that whether ESI is admissible involves a series of inquiries, Judge Grimm set forth:<\/p>\n

Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of [sic] if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance<\/em>.[77]<\/p>\n

\u00a0Most of these rules would not be any more challenging to satisfy using recordings from Glass as opposed to other evidentiary materials.\u00a0 As such, relevance under Rule 401[78] and probative value versus prejudicial risk under Rule 403[79] will not be addressed by this Article.<\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 With respect to authenticity, Glass recordings seem like a hybrid.\u00a0 Because of the way Glass functions with automatic uploading, these recordings may be viewed as a more traditional video recording or more like electronic information. \u00a0Under Rule 901(a), \u201c[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.\u201d[80] \u00a0Rule 901(b) goes on to give examples of evidence that satisfies this 901(a) requirement.[81] \u00a0As ESI, it may be possible that the metadata automatically attached to the Glass recordings would be sufficient to prove its authenticity, though it may be necessary to secure testimony from a witness with knowledge\u2014 presumably the wearer\u2014to secure this.[82] \u00a0The easiest way for the party introducing the Glass recording to satisfy Rule 901 is to produce a witness with knowledge\u2014one who recognizes the scene (and sound) depicted by the Glass recording\u2014to attest that the recording is what it is claimed to be.[83] \u00a0Based on the fact that Glass is a head-mounted device, it is likely that this will be easy to arrange as the creator of the video would also be an eye witness, probably already solicited to testify.<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 Glass recordings would also need to satisfy the original writing requirement, more commonly referred to as the \u201cbest evidence\u201d rule. \u00a0Rule 1002 states that \u201c[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.\u201d[84] \u00a0With recordings automatically synched with Google cloud storage, it may be difficult to determine what is \u201coriginal\u201d in the colloquial sense. \u00a0In all likelihood the initial data or \u201coriginal\u201d is the recording existing on the Glass device itself, which is effectively useless in that form it cannot be viewed by anyone other than the wearer. \u00a0Fortunately, the Federal Rules of Evidence take a broader approach, defining original as \u201cthe writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. \u00a0For electronically stored information, \u2018original\u2019 means any printout\u2014or other output readable by sight\u2014if it accurately reflects the information,\u201d including the negative.[85] \u00a0As this Rule is primarily concerned with the alteration of evidence, the copy of the recording that is automatically uploaded to the cloud would be considered such a \u201ccounterpart.\u201d \u00a0If courts are unwilling to consider this more accessible video recording as an original, it should qualify as a duplicate.[86] \u00a0Pursuant to Rule 1003, \u201cA duplicate is admissible to the same extent as the original unless a genuine question is raised about the original\u2019s authenticity or the circumstances make it unfair to admit the duplicate.\u201d[87] \u00a0As an identical copy of the recording is uploaded with no opportunity for alteration, it would certainly reflect the original recording accurately, and there is nothing about the Glass synching process that would invite skepticism.<\/p>\n

2.\u00a0 The Inadequacy of Existing Hearsay Rules<\/b><\/h4>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 Though some of the recordings taken by Google Glass will present no hearsay problems, there will inevitably be recordings captured by Glass with that are highly probative yet may amount to inadmissible hearsay. \u00a0Though these recordings, like cell phone recordings, may fit into any number of the twenty-plus hearsay exceptions provided for in the Federal Rules of Evidence, this piecemeal application instead highlights a need for a hearsay rule that better accommodates digital photos and videos captured by mobile and wearable recording devices.<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 Hearsay means \u201ca statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.\u201d[88] \u00a0In other words, hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement, and it is inadmissible in court.[89] \u00a0As a preliminary matter, then, there must be a statement made by a person. \u00a0Many photos and recordings taken by Glass will not meet these preliminary requirements, and as non-hearsay they will not be susceptible to exclusion under Rules 801 and 802. \u00a0Furthermore, they may be admissible as a declarant-witness\u2019 prior statement, an opposing party\u2019s statement, a present sense impression, a record of regularly conducted activity, or under one of the other numerous hearsay exceptions.[90] \u00a0However, not every recording will be covered by these exceptions, and therefore this otherwise valuable evidence may be excluded.<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 Hearsay rules are based on a concern over reliability.[91] \u00a0Law Professor Laurence Tribe noted that out-of-court statements are considered suspect because of \u201cthe four testimonial infirmities of ambiguity, insincerity, faulty perception, and erroneous memory.\u201d[92]\u00a0 Importantly, we are concerned with the in-court witness\u2019 inability to and potential disinterest in providing a faithful account of the out-of-court statement. \u00a0Admission of Glass recordings, however, is likely to be faithful to this purpose, encouraging truth-seeking. \u00a0Glass recordings greatly reduce issues of ambiguity, insecurity, perception, and memory.[93]\u00a0 The statements are preserved in these recordings, capturing them accurately and including context as well inflection, mannerisms, and other indicators of sincerity and meaning.[94]\u00a0 In this way, the exclusion of Google Glass recordings under the existing hearsay rules may be illogical, or at least inconsistent with hearsay\u2019s goal.<\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 Law Professor Jeffrey Bellin\u2019s proposal for an eHearsay (also called an eSRP) rule captures the need for hearsay rules to adjust to a world in which more social interactions and communications are recorded digitally, which will only increase as wearable technology becomes increasingly ubiquitous.[95]\u00a0 In particular, he proposes to add another hearsay exception, stating that the following type of statements are not excluded as hearsay where a declarant is not available as a witness:<\/p>\n

\u00a0<\/b><\/p>\n

Recorded Statement of Recent Perception. \u00a0<\/b>A recorded communication that describes or explains an event or condition recently perceived by the declarant, but not including: (A) a statement made in contemplation of litigation, or to a person who is investigating, litigating, or settling a potential or existing claim; or (B) an anonymous statement<\/em>.[96]<\/p>\n

With respect to a \u201crecorded conversation,\u201d Bellin proceeds to clarify that \u201c[a]nything memorialized by mechanical or electronic means as the speaker communicates counts as \u2018recorded\u2019 for purposes of the eSRP exception.\u201d[97]\u00a0 On its face, Glass recordings would appear to fit\u2014they electronically memorialize communications.\u00a0 However, as the article focuses on textual digital statements rather than statements recorded in an audiovisual form, it is not entirely clear whether this exception as proposed would extend to Glass recordings.\u00a0 Considering the increased prevalence of audiovisual recordings\u2014from short Vine video clips to extended Glass recordings\u2014it should.\u00a0 Such an inclusive eHearsay rule would go a long way in addressing the reliability of Glass recordings.<\/p>\n

C.\u00a0 Relevance of State Recording Laws<\/b><\/h3>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 Beyond these evidentiary rules, other considerations may affect the introduction of these recordings as evidence, including the legality of the acquisition of the recording.\u00a0 For example, state recording laws will play a role in the recordings captured by Google Glass.\u00a0 As of May 2014, eleven states are two-party consent states, which means that all parties to a communication must consent to being recorded, while the remainder are one-party consent states in which the consent of a single party to the conversation is generally sufficient to make recording lawful.[98]<\/p>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 It is certainly foreseeable that some recordings captured by Glass will violate these recording laws\u2014though many will not be illegally obtained.\u00a0 If an individual\u2019s recording violates one of these laws, however, it can often still be admitted as evidence (though to some degree this may be a question of the judge\u2019s discretion when considering relevance and prejudice under Rule 403).[99]\u00a0 More likely, a state may have a law on point involving the admission of recordings taken without the parties\u2019 knowledge.\u00a0 This varies by state, but both one- and two- party consent states have codified provisions limiting the use of recordings of conversations as evidence.[100]<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 In terms of particular subject matter, individuals may proceed, with caution, when using Glass to record officers.\u00a0 Though the issue will not be addressed in depth here, it is likely that Glass will be used to record officers.[101] \u00a0It is important to note that four federal circuits have recognized a First Amendment right to record police officers performing their duties, though this right is typically qualified as an individual cannot interfere with the officer\u2019s performance of their duties or violate generally applicable laws.[102]\u00a0 Overall, though not the most prominent issue, the lawfulness of these Glass recordings cannot be ignored when considering the ability to admit\u2014and the frequency of admitting\u2014these recordings as evidence in litigation proceedings.<\/p>\n

D.\u00a0 Legal Concerns Involving Availability<\/b><\/h3>\n

[32]\u00a0\u00a0\u00a0\u00a0\u00a0 As with much technological innovation when first introduced, Glass and other wearable computers are subject to criticism and concern.\u00a0 Most of the concerns that have arisen to date relate to privacy and safety, and how they are addressed may affect the availability and prevalence of Glass recordings.<\/p>\n

[33]\u00a0\u00a0\u00a0\u00a0\u00a0 Those privacy concerns raised relate to both traditional vertical notions of privacy, from the government and corporate bodies, as well as a more horizontal notion of privacy from one\u2019s peers.[103]\u00a0 These anxieties center around the great amount of conduct that may be preserved in photos or film, often without the knowledge of the actors, as well as the government\u2019s and Google\u2019s access to these materials.\u00a0 Three primary general concerns have been raised.\u00a0 First, because the recording feature on Glass is rather inconspicuous, this may threaten an individual\u2019s ability to have anonymous interactions, not to mention the unauthorized recording considerations.[104]\u00a0 Second, without legislation to secure safeguards, it may be possible for government agents to access the Glass data without being held accountable for this privacy invasion.[105]\u00a0 Lastly, because this data is stored on Google\u2019s cloud servers, Google has complete access to much personal data.[106]\u00a0 Many others have expressed a fear that Glass will employ a facial recognition feature, but Google has firmly renounced such an attribute.[107]\u00a0 Congress[108] and authorities from several nations around the globe[109] have expressed their concerns to Google, but legislation addressing these fears has been minimal.\u00a0 More action has been taken locally, where businesses have banned customers from wearing Glass on their premises, including banks, bars, casinos, and more, primarily based on privacy, safety, and security grounds.[110]<\/p>\n

[34]\u00a0\u00a0\u00a0\u00a0\u00a0 Legislatures have been less hesitant to respond to the debate over the use of Glass while driving, concerned that Glass poses the same safety hazards as cell phones.[111]\u00a0 New Jersey, New York, and West Virginia\u2014and even the United Kingdom\u2014have all proposed legislation banning the use of wearable computers, such as Glass, by drivers.[112]\u00a0 With the first reported traffic violation for wearing Glass while driving in California in late October, 2013,[113] it appears likely that more states will move towards proposing similar statutes.[114]<\/p>\n

V.\u00a0 Conclusion<\/b><\/h2>\n

We can expect an onslaught of new wearable computer product devices such as Google Glass and others that are still only rumors, including eyeglass-mounted computer systems, head-mounted computers, Apple\u2019s iWatch, and other smartwatch devices.<\/i>[115]<\/p>\n

\u2014Judge Herbert B. Dixon Jr.,<\/p>\n

Superior Court of the District of Columbia<\/p>\n

[35]\u00a0\u00a0\u00a0\u00a0\u00a0 Wearable computing is not going away\u2014whether it takes the form of Google Glass or other head-mounted gear, smartwatches, or other devices we cannot yet imagine.\u00a0 Technology will keep developing, so rather than solely fearing these changes, the legal system and its participants should acknowledge their potential utility.\u00a0 Glass, as it becomes more available to the public, will expand the base of what individuals choose to and are able to record.\u00a0 Even more than cell phones, Glass and its counterparts will enable photos and videos to be taken that could serve as invaluable evidence in many hearings and trials.<\/p>\n

[36]\u00a0\u00a0\u00a0\u00a0\u00a0 This past summer, one blogger posited this question\u2014what would have happened if Trayvon Martin was wearing Google Glasses?[116]\u00a0 Though most responders recognized that it was unlikely that the expensive technology would have been available to Martin himself,[117] it becomes more believable that George Zimmerman, or a potential onlooker in a similar situation, could have been wearing a pair.\u00a0 \u201cIf one of them said, \u2018Ok, Glass, record a video\u2019 at the start, the jury would have had irrefutable evidence of what happened \u2013 the key piece missing from the Zimmerman trial.\u201d[118]\u00a0 This may not be conceivable yet, but it is not difficult to imagine similar circumstances in the future wherein a Glass recording would be as influential in litigation and the pursuit of justice.[119]\u00a0 In the meanwhile, let us embrace this new technology, learn \u00a0its features, capabilities, and limitations, thoughtfully consider \u00a0privacy implications, and work with attorneys, judges, and technologists, to make its transition into the courtroom a smooth one.<\/p>\n

\n

 <\/p>\n

\n
\n

* J.D., William & Mary School of Law, 2014; B.A., Brown University, 2011.\u00a0 Many thanks to the folks at the Berkman Center, especially Jonathan Zittrain, for coordinating the Google Glass demonstration that introduced me to the device, as well as Philip Greenspun, for leading the discussion that sparked the idea for this Article and for further discussions and support. Their assistance was invaluable in getting this Article started. I would also like to thank Fredric Lederer for his support, guidance, and insight during the writing and editing process.<\/p>\n

 <\/p>\n

[1] See, e.g.<\/i>, Google Glass<\/i>, Google Glass Apps, http:\/\/glass-apps.org\/google-glass (last visited Apr. 16, 2014).<\/p>\n<\/div>\n

\n

[2] See Google Glass: What It Does<\/i>, Google, http:\/\/www.google.com\/glass\/start\/what-it-does\/ (last visited Mar. 6, 2014) [hereinafter What It Does<\/i>].<\/p>\n

[3] See <\/i>Kashmir Hill, Google Glass Will Be Incredible for the Courtroom<\/i>, Forbes (Mar. 15, 2013, 5:02 PM), http:\/\/www.forbes.com\/sites\/kashmirhill\/2013\/15\/google-glass-will-be-incredible-for-the-courtroom\/.<\/p>\n<\/div>\n

\n

[4] See <\/i>Babak Parviz, Steve Lee, & Sebastian Thrun, Google Glass<\/i>, Google+ (Apr. 4, 2012), https:\/\/plus.google.com\/+GoogleGlass\/posts\/aKymsANgWBD.<\/p>\n

[5] See Google Glass<\/i>, supra <\/i>note 1.<\/p>\n<\/div>\n

\n

[6] See id.<\/i>; see also <\/i>Scott Torborg & Star Simpson, What\u2019s Inside Google Glass?<\/i>, Catwig, http:\/\/www.catwig.com\/google-glass-teardown\/ (last visited May 30, 2014).<\/p>\n

[7] See Google Glass: How it Looks<\/i>, Google, http:\/\/www.google.com\/glass\/start\/how-it-looks\/ (last visited Mar. 18, 2014); Salvador Rodriguez, Google Unveils New Glass Frames; Wide Consumer Launch Set for Year End<\/i>, L.A. Times (Jan. 28, 2014, 8:28 AM), http:\/\/www.latimes.com\/business\/technology\/la-fi-tn-google-glass-new-frames-consumer-launch-2014-20140128,0,6115730.story.<\/p>\n<\/div>\n

\n

[8] Augmented reality is \u201c[a] technology that superimposes a computer-generated image on a user\u2019s view of the real world, thus providing a composite view.\u201d Augmented Reality<\/i>, Oxford Dictionaries, http:\/\/www.oxforddictionaries.com\/us\/definition\/english\/augmented-reality, (last visited Mar. 6, 2014).<\/p>\n<\/div>\n

\n

[9] See What It Does<\/i>, supra <\/i>note 2.\u00a0 This author had the opportunity to try out Glass in June 2013 and was amazed by the simplicity of the device. A simple voice command of \u201cok glass\u201d would prepare the device for other instructions like \u201ctake a picture,\u201d \u201cmake a call to Mike Smith,\u201d \u201cGoogle how tall is the Statue of Liberty.\u201d\u00a0 Taking the latter as an example, Glass then displayed a picture of the Statue of Liberty and the search results, while the speaker just behind my ear responded \u201c305 feet.\u201d\u00a0 With a light swipe of the touchpad (on the right side), I could even scroll through the list of search results.<\/p>\n<\/div>\n

\n

[10] \u201cTED is a nonprofit devoted to spreading ideas, usually in the form of short, powerful talks (18 minutes or less).\u201d Our Organization<\/i>, TED, http:\/\/www.ted.com\/pages\/about (last visited Mar. 6, 2014).\u00a0 The goal of the organization \u201cis to make great ideas accessible and spark conversation.\u201d Id.<\/i><\/p>\n<\/div>\n

\n

[11] See <\/i>Sergey Brin, Why Google Glass?<\/i>, TED, http:\/\/www.ted.com\/talks\/sergey_brin_why_google_glass.html (last visited Mar. 6, 2014) (featuring the seven minute video from Brin\u2019s February 2013 talk and \u201ccall[ing] for a new way of seeing our relationship with our mobile computers\u2014not hunched over a screen but meeting the world heads-up\u201d).<\/p>\n<\/div>\n

\n

[12] This is evident from comments from Product Director Steve Lee at Google\u2019s I\/O conference in 2012.\u00a0 See <\/i>Joshua Topolsky, I Used Google Glass: The Future, but with Monthly Updates<\/i>, The Verge (Feb. 22, 2013, 11:39 AM), http:\/\/www.theverge.com\/2013\/2\/22\/4013406\/i-used-google-glass-its-the-future-with-monthly-updates (\u201cWe wondered, what if we brought technology closer to your senses?\u00a0 Would that allow you to more quickly get information and connect with other people but do so in a way\u2014with a design\u2014that gets out of your way when you\u2019re not interacting with technology?\u00a0 That\u2019s sort of what led us to Glass.\u201d).<\/p>\n<\/div>\n

\n

[13] Dean Takahashi, How Google Designed its Wearable Glass Gadget (and Why)<\/i>, VentureBeat (Aug. 23, 2013, 3:21 PM), http:\/\/venturebeat.com\/2013\/08\/26\/how-and-why-google-designed-its-wearable-glass-gadget\/ (quoting Babak Parviz).<\/p>\n

[14] See Google Glass: How to Get One<\/i>, Google, http:\/\/www.google.com\/glass\/start\/how-to-get-one\/ (last visited Mar. 6, 2014).<\/p>\n<\/div>\n

\n

[15] See <\/i>Claire Cain Miller, Google Searches for Style<\/i>, N.Y. Times (Feb. 20, 2013), http:\/\/www.nytimes.com\/2013\/02\/21\/technology\/google-looks-to-make-its-computer-glasses-stylish.html?pagewanted=all.<\/p>\n<\/div>\n

\n

[16] See Google Search Over for Pool of 8,000 to Test \u2018Glass\u2019<\/i>, USA Today (Mar. 26, 2013 8:52 PM), http:\/\/www.usatoday.com\/story\/tech\/2013\/03\/26\/google-glass-testers\/2023277\/.<\/p>\n<\/div>\n

\n

[17] Google Glass, With a Little Help From Our Friends<\/i>, Google+ (Oct. 28, 2013), https:\/\/plus.google.com\/+GoogleGlass\/posts\/PVioN5i3jiY.<\/p>\n<\/div>\n

\n

[18] Stan Schroder, Google Glass Is Available to Everyone Today: How to Buy It<\/i>, Mashable (Apr. 15, 2014, 4:00 PM), http:\/\/mashable.com\/2014\/04\/15\/google-glass-how-to-buy\/?utm_cid=mash-com-fb-tech-link.<\/p>\n<\/div>\n

\n

[19] What individuals or companies consider a security vulnerability may vary, but as a common example, Microsoft defines a vulnerability as \u201ca security exposure that results from a product weakness that the product developer did not intend to introduce and should fix once it is discovered.\u201d\u00a0 Definition of a Security Vulnerability<\/i>, Microsoft, http:\/\/technet.microsoft.com\/en-us\/library\/cc751383.aspx (last visited Mar. 4, 2014).<\/p>\n<\/div>\n

\n

\u00a0[20] See, e.g.<\/i>, Using Your Android\u2019s Data Connection<\/i>, Google Glass, https:\/\/support.google.com\/glass\/answer\/3056780?hl=en&ref_topic=3063380 (last visited Apr. 16, 2014).<\/p>\n

[21] See Tech Specs: Google Glass Help<\/i>, Google, https:\/\/support.google.com\/glass\/answer\/3064128?hl=en (last visited Mar. 4, 2014).<\/p>\n<\/div>\n

\n

[22] See id.<\/i><\/p>\n<\/div>\n

\n

[23] See <\/i>Jessica Dolcourt, Everything You Need to Know About Google Glass (FAQ)<\/i>, CNET (May 6, 2013, 3:26 PM), http:\/\/reviews.cnet.com\/8301-34900_7-57583052\/everything-you-need-to-know-about-google-glass-faq\/.<\/p>\n<\/div>\n

\n

[24] See id.<\/i>; Thomas Tamblyn, Google Glass Price, Release Date, Specs and Info<\/i>, T3 (May 24, 2013, 4:09 PM), http:\/\/www.t3.com\/news\/google-glass-price-release-date-specs-and-info.<\/p>\n<\/div>\n

\n

[25] A QR code is a square-shaped barcode that can store data\u2014like a website\u2019s URL or email addresses\u2014and be scanned by cell phones, tablets, and the like. \u00a0See <\/i>Scott Matteson, Address Google Glass Vulnerabilities with These Best Practices<\/i>, Tech Republic (Sept. 16, 2013, 11:36 AM), http:\/\/www.techrepublic.com\/blog\/google-in-the-enterprise\/address-google-glass-vulnerabilities-with-these-best-practices\/.<\/p>\n<\/div>\n

\n

[26] See id.<\/i>\u00a0 Google patched the vulnerability within weeks.\u00a0 See id.<\/i><\/p>\n<\/div>\n

\n

[27] See id.<\/i><\/p>\n

[28] See id.<\/i><\/p>\n<\/div>\n

\n

[29] See Google Glass: Help<\/i>, Google, https:\/\/support.google.com\/glass\/answer\/3079691?hl=en&ref_topic=3079640 (last visited Mar. 18, 2014).\u00a0 This author was also present during a demonstration by Google Glass employees at the Berkman Center, in Cambridge, Mass. (June 19, 2013).<\/p>\n

[30] Cf. <\/i>Jeremy Hsu, How Google Glass Can Improve ATM Banking Security<\/i>, IEEE Spectrum (Mar. 10, 2014, 3:10 PM), http:\/\/spectrum.ieee.org\/tech-talk\/consumer-electronics\/gadgets\/how-google-glass-can-improve-atm-banking-security (discussing a process by which customers could enter their pin code one time, then use a QR code on the ATM screen to sign in, protecting against \u201cATM skimming\u201d); Joshua Pramis, Google Glass Explorer Edition Is Too Secure to Make Easy Repairs<\/i>, Digital Trends (May 15, 2013), http:\/\/www.digitaltrends.com\/mobile\/google-glass-explorer-edition-repairs\/ (discussing the \u201csuper secure casing\u201d on early Glass models).\u00a0 But see<\/i> Hacker Tells Google How to Secure Glass<\/i>, Infosecurity (May 3, 2013), http:\/\/www.infosecurity-magazine.com\/view\/32227\/hacker-tells-google-how-to-secure-glass\/ (noting that Glass is \u201ceminently hackable\u201d because it is not password pin protected).<\/p>\n<\/div>\n

\n

[31] See <\/i>Lorraine Luk & Shira Ovide, Microsoft Tests Eyewear Similar to Rival Google Glass<\/i>, Wall St. J. (Oct. 22, 2013, 8:34 AM), http:\/\/online.wsj.com\/news\/articles\/SB20001424052702304402104579150952302814782 (\u201cMicrosoft Corp. is testing prototypes for Web-connected eyewear similar to the Google Glass device, people familiar with the matter said . . . . A person familiar with Microsoft\u2019s project said the company has asked several component makers in Asia to supply cameras and other key components for eyewear prototypes.\u201d).<\/p>\n<\/div>\n

\n

[32] See <\/i>Min-Jeong Lee, Patent Filing Shows Samsung Preps Electronic Eyewear<\/i>, Wall St. J. (Oct. 24, 2013, 4:01 AM), http:\/\/blogs.wsj.com\/digits\/2013\/10\/24\/patent-filing-shows-samsung-preps-electronic-eyewear\/ (\u201cFrom what the drawings and the memo suggest, it doesn\u2019t look much different from what Google has potentially offered in terms of functionality with its Google Glass which is currently under development.\u00a0 A pool of selected users is currently testing the device.\u201d); Kevin C. Tofel, Samsung Applies to Patent a Google Glass Lookalike: Hello \u201cEarphone\u201d<\/i>, Gigaom (Apr. 15, 2014, 8:12 AM), http:\/\/gigaom.com\/2014\/04\/15\/samsung-applies-to-patent-a-google-glass-lookalike-hello-earphone\/.<\/p>\n<\/div>\n

\n

[33] Gary Marshall, Apple iGlass: The Augmented Reality Glasses to Kill Casual Conversation<\/i>, Tech Radar (Nov. 4, 2012), http:\/\/www.techradar.com\/us\/news\/computing\/apple\/apple-iglass-the-augmented-reality-glasses-to-kill-casual-conversation-1108905.<\/p>\n<\/div>\n

\n

[34] See ORA-1 Digital Eyewear Platform<\/i>, Optinvent, http:\/\/optinvent.com\/see-through-glasses-ORA (last visited Mar. 26, 2014); Order Now<\/i>, Optinvent, \u00a0(last visited Apr. 16, 2014).<\/p>\n<\/div>\n

\n

[35] See, e.g.<\/i>, M100, Smart Glasses<\/i>, Vuzix, http:\/\/www.vuzix.com\/consumer\/products_m100\/ (last visited Mar. 18, 2014) (describing M100 glasses from Vuzix used to connect to smart phones that can remain in a user\u2019s briefcase); Recon Jet<\/i>, Recon Instruments, http:\/\/jet.reconinstruments.com\/triathlon\/ (last visited Mar. 18, 2014) (describing Jet glasses from Recon for use by cyclists); see also<\/i> Anne Eisenberg, Seeking a Staredown With Google Glass<\/i>, N.Y. Times (Oct. 12, 2013), http:\/\/www.nytimes.com\/2013\/10\/13\/business\/seeking-a-staredown-with-google-glass.html?_r=0.<\/p>\n<\/div>\n

\n

[36] Cf.<\/i> Michael Liedtke, Is Google Glass the Next (Slow-selling) Segway?<\/i>, Boston Globe (Aug. 28, 2013), http:\/\/www.bostonglobe.com\/business\/2013\/08\/27\/exploring-google-glass-through-eyes-early-users\/rGMiZBj26qNQI5jEKEaCwJ\/story.html (questioning whether Glass will have mass appeal, or whether it will \u201cbe remembered as a geeky curiosity that never lived up to its hype, similar to the Segway, the two-wheeled, self-balancing scooters that remain an anomaly more than a decade after they first went on sale\u201d).<\/p>\n<\/div>\n

\n

[37] See <\/i>John Paczkowski, Tim Cook on Wearables: \u201cI Think the Wrist Is Interesting\u201d (Video)<\/i>, All Things D (May 28, 2013, 7:01 PM), http:\/\/allthingsd.com\/20130528\/tim-cook-wearable-computing-has-promise-but-must-be-compelling\/ (discussing Cook\u2019s belief that wearables for the wrist are more natural and hold a wider appeal, and including a video of his remarks from All Things D\u2019s D11 conference).<\/p>\n<\/div>\n

\n

[38] See <\/i>Chris Matyszczyk, 90 Percent of Americans Won’t Wear Google Glass, Survey Says<\/i>, CNET (May 15, 2013, 10:02 AM), http:\/\/news.cnet.com\/8301-17852_3-57584611-71\/90-percent-of-americans-wont-wear-google-glass-survey-says\/ (discussing the results of the survey and noting that of the 1,000 people surveyed, other than the price concern, many were hesitant to use Glass because of the \u201csocial awkwardness\u201d).\u00a0 Glass Almanac conducted a similar survey in August 2013, and found that only twelve percent (12%) of their 1,003 respondents were likely to purchase Glass if they cost around $300 and are integrated with designer frames.\u00a0 See<\/i> Josh Braaten, 12 Percent of US Likely to Buy $300 Designer Google Glass<\/i>, Glass Almanac (Sept. 6, 2013), http:\/\/glassalmanac.com\/12-percent-us-likely-buy-300-glass-study\/754\/#sthash.liRsf8dP.dpuf.<\/p>\n<\/div>\n

\n

[39] See <\/i>Liz Gannes, Google Glass Could Be $3-Billion-a-Year Business, Says Analyst<\/i>, All Things D (Sept. 4, 2013, 11:14 AM), http:\/\/allthingsd.com\/20130904\/google-glass-could-be-3-billion-a-year-business-says-analyst\/?mod=atdtweet.\u00a0 Peck based this value off of a unit price of $349 for new units and an installed base of 64,500 by 2017.\u00a0 See id.<\/i><\/p>\n

[40] See <\/i>Ben Furfie, Google Glass Is the UK\u2019s Most Wanted Gadget<\/i>, T3 (Sept. 26, 2013, 7:59 PM), http:\/\/www.t3.com\/news\/google-glass-is-the-uks-most-wanted-gadget (\u201cThe show polled 3,900 UK gadget fans to find out what their most anticipated gadget of next year is\u201d and \u201cGoogle\u2019s high tech glasses racked up [twenty four percent] of the vote.\u201d).<\/p>\n<\/div>\n

\n

[41] For example, a search of \u201cGoogle Glass \u2018is a big deal\u2019\u201d conducted on Google on October 31, 2013, yielded about 23,500,000 results, and an overwhelming number of tech bloggers have predicted it\u2019s significant impact.\u00a0 See, e.g.<\/i>, Dylan Love, SCOBLE: Here’s How I Know Google Glass Is a Big Deal<\/i>, Business Insider (May 3, 2013, 12:43 PM), http:\/\/www.businessinsider.com\/robert-scoble-on-google-glass-2013-5#ixzz2jLRBpjtt; see also supra<\/i> notes 39-40 and accompanying text.<\/p>\n<\/div>\n

\n

[42] See Glass Press:<\/i> FAQ<\/i>, Google, https:\/\/sites.google.com\/site\/glasscomms\/faqs (last visited Mar. 18, 2014); Salvador Rodriguez, Google Unveils New Glass Frames; Wide Consumer Launch Set for Year End<\/i>, L.A. Times (Jan. 28, 2014, 8:28 AM), http:\/\/www.latimes.com\/business\/technology\/la-fi-tn-google-glass-new-frames-consumer-launch-2014-20140128,0,6115730.story#ixzz2t8sGsbR6.<\/p>\n<\/div>\n

\n

[43] United States v. Wade, 388 U.S. 218, 228 (1967).<\/p>\n<\/div>\n

\n

[44] Manson v. Brathwaite, 432 U.S. 98, 119-20 (1977) (Marshall, J., dissenting).<\/p>\n<\/div>\n

\n

[45] Felix Frankfurter, The Case of Sacco and Vanzetti 30 (1927) (published while Frankfurter was a prominent scholar and professor at Harvard Law School, 12 years before he was appointed to the Supreme Court).<\/p>\n

[46] See supra<\/i> notes 43-45 and accompanying text.<\/p>\n<\/div>\n

\n

[47] Elizabeth F. Loftus, Eyewitness Testimony (1st ed. 1979).<\/p>\n<\/div>\n

\n

[48] Id.<\/i> at 21.<\/p>\n<\/div>\n

\n

[49] For just a sampling of studies and commentary on these witness reliability problems, see Patrick M. Wall, Eye-witness Identification in Criminal Cases (3rd prtg. 1975); Laura Engelhardt, The Problem with Eyewitness Testimony: Commentary on a Talk by George Fisher and Barbara Tversky<\/i>, 1 Stan. J. Legal Stud. 25 (1999), available at<\/i> http:\/\/ agora.stanford.edu\/sjls\/images\/pdf\/engelhardt.pdf; Muriel D. Lezak, Some Psychological Limitations on Witness Reliability<\/i>, 20 Wayne L. Rev. 117 (1973); Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later<\/i>, 33 Law & Hum. Behav. 1 (2009), available at <\/i>https:\/\/www.psychology.iastate.edu\/~glwells\/Wells_articles_pdf\/Manson_article_in_LHB_Wells.pdf; Fredric D. Woocher, Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification<\/i>, 29 Stan. L. Rev. 969 (1977).<\/p>\n<\/div>\n

\n

[50] Loftus, supra <\/i>note 47, at xii-xiii.\u00a0 It should be noted that this is particularly influenced by race, as cross-racial identifications are notoriously less reliable, but this Article will not address such.\u00a0 For a relatively early, thorough study of this topic, see Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases<\/i>, 69 Cornell L. Rev. 934 (1984).<\/p>\n<\/div>\n

\n

[51] See <\/i>Wells & Quinlivan, supra<\/i> note 49 at 1 (citing three studies from 1995\u20132000); see also<\/i> Profiles<\/i>, Innocence Project, http:\/\/www.innocenceproject.org\/know\/Browse-Profiles.php (last visited Mar. 5, 2014) (profiling hundreds of wrongfully-convicted people and their exonerations, noting any causes that contributed to their conviction, including \u201ceyewitness misidentification\u201d) (click on any one of the names listed on the original site to see what causes contributed to conviction).<\/p>\n<\/div>\n

\n

[52] See, e.g.<\/i>, Google Glass: How it Looks<\/i>, supra<\/i> note 7; Darren Orf, Google Glass, Now with Prescription Lenses and Hipper Frames<\/i>, Popular Mechanics (Jan. 28, 2014, 11:08 AM), http:\/\/www.popularmechanics.com\/technology\/gadgets\/tech-news\/google-glass-now-available-for-prescription-lenses-16430656.<\/p>\n<\/div>\n

\n

[53] Kashmir Hill, Google Glass Will Be Incredible for the Courtroom<\/i>, Forbes (March 15, 2013, 5:02 PM), http:\/\/www.forbes.com\/sites\/kashmirhill\/2013\/03\/15\/google-glass-will-be-incredible-for-the-courtroom\/.\u00a0 A recent car accident in Kingston, N.Y. has already been captured by Glass in photos\u2014video is hardly a stretch.\u00a0 See <\/i>Ivan Lajara, Google Glass and Journalism<\/i>, Medium, https:\/\/medium.com\/this-happened-to-me\/4c24f8bb5b3a (last visited Mar. 5, 2014).<\/b><\/p>\n<\/div>\n

\n

[54] Photographer Trey Ratcliff highlighted this, saying, \u201cHere’s the X Factor for the Glass camera that no one ever mentions.\u00a0 It’s head-mounted, which means it is a thousand times more steady than holding a mobile phone camera.\u201d\u00a0 Jim Edwards, These Astonishing Images Convinced Us That Google Glass Will Change Photography Forever<\/i>, Bus. Insider (Nov. 14, 2013, 9:31 PM), http:\/\/www.businessinsider.com\/google-glass-photos-by-trey-ratcliff-2013-11?op=1#ixzz2mS53bcYy.<\/p>\n

[55] This author recognizes that this conclusion assumes some degree of pervasiveness such that enough people who own Glass will be \u201con the streets,\u201d so to speak, and that those Glass owners will be wearing the device.\u00a0 This Article has already addressed the debate over the popularity of Glass once it hits the market, supra <\/i>Part II.D, but it does seem that many of those Explorers who own a pair of Glass wear them regularly.\u00a0 See <\/i>Matt McGee, Poll Results: Most Explorers Wear Glass Every Day<\/i>, Glass Almanac (Oct. 24, 2013), http:\/\/glassalmanac.com\/poll-results-explorers-wear-glass-every-day\/1307\/.<\/p>\n<\/div>\n

\n

[56] See Voice Actions<\/i>, Google Glass, http:\/\/support.google.com\/glass\/answer\/3079305?hl=en&ref_topic=3063233&rd=1 (last visited Mar. 18, 2014).\u00a0 Applications are also being developed to make this even simpler and faster.\u00a0 For example, the Winky App would allow users to capture a photo with a simple slow wink, instead of saying \u201cok, glass, take a picture.\u201d\u00a0 See <\/i>Adario Strange, Google Glass ‘Winky’ App Lets You Snap Photos by Winking<\/i>, PC Mag (May 2, 2013, 9:33 AM), http:\/\/www.pcmag.com\/article2\/0,2817,2418451,00.asp.<\/p>\n<\/div>\n

\n

[57] For one projection of the impact of this, see Michael Ham, Boston: A Preview of Crime in the Google Glass Era<\/i>, Huffington Post (Apr. 19, 2013, 12:08 PM), http:\/\/www.huffingtonpost.com\/michael-ham\/boston-a-preview-of-crime_b_3109392.html (\u201cToday, a person about to witnesses an attack or tragedy must have already removed a device from their pocket to capture the scene.\u00a0 This severely limits the number of image and video accounts of the actual act and person(s) who set the attack in motion.\u00a0 As technologies like Google Glass are adopted by the general public, the amount of eyewitness accounts will surge and likely include complete coverage from the time the person drops off a device, to the time it goes off.\u00a0 It may even be possible to follow the suspect through a trail of personal video streams, all the way back to where they reside.\u201d).<\/p>\n

[58] What It Does<\/i>, supra <\/i>note 2.<\/p>\n<\/div>\n

\n

[59] See id.<\/i>\u00a0 Users have been highlighting all of the potential that may come from this hands-free aspect of Glass.\u00a0 See, e.g.<\/i>, Sarah Hill, How Google Glass Can Evolve as a Tool for Journalists<\/i>, Next Web (July 13, 2013, 3:30 PM), http:\/\/thenextweb.com\/google\/2013\/07\/13\/how-google-glass-can-evolve-as-a-tool-for-journalists\/ (describing journalists conducting interviews); Tom Simonite, Google Glass as a Hands-Free Instruction Manual<\/i>, MIT Tech. Rev. (Sept. 17, 2013), http:\/\/www.technologyreview.com\/view\/519386\/google-glass-as-a-hands-free-instruction-manual\/ (describing use for car maintenance).<\/p>\n<\/div>\n

\n

[60] See, e.g.<\/i>, <\/i>Elise Hu, Arrest Caught on Google Glass Reignites Privacy Debate<\/i>, NPR (July 8, 2013, 2:45 PM), http:\/\/www.npr.org\/blogs\/alltechconsidered\/2013\/07\/09\/200030825\/arrest-caught-on-google-glass-reignites-privacy-debate.\u00a0 One Explorer who used Glass to record an arrest said,<\/p>\n

What is interesting with Glass is that in tense situations, like, say, war reporting, your hands are free while you’re shooting.\u00a0 You can use your hands to protect yourself.\u00a0 If I wanted to back away, I could do it without dropping my camera or stopping the recording.\u00a0 That\u2019s a big step in wearable computing.\u00a0<\/em><\/p>\n

\u00a0Id.<\/i><\/p>\n

[61] See<\/i> Kate Solomon, How Do You Know if Someone\u2019s Recording with Google Glass?<\/i>, Tech Radar (July 3, 2013), http:\/\/www.techradar.com\/us\/news\/portable-devices\/other-devices\/how-do-you-know-if-someone-s-recording-with-google-glass–1163374.<\/p>\n<\/div>\n

\n

[62] See <\/i>Hu, supra <\/i>note 60.<\/p>\n<\/div>\n

\n

[63] See id.<\/i><\/p>\n<\/div>\n

\n

[64] John Koetsier, \u2018I Filmed the First Fight and Arrest Through Google Glass\u2019<\/i>, VentureBeat (July 5, 2013, 9:59 AM), http:\/\/venturebeat.com\/2013\/07\/05\/i-filmed-the-first-fight-and-arrest-through-google-glass\/#f004ucFeCPPhM1b5.99.\u00a0 Thomson Reuters\u2019s head of editorial solutions, Christophe Gevrey, went further to reflect that,<\/p>\n

 <\/p>\n

More notable than the video itself is the ease at which it was captured without the knowledge of those in the middle of the melee.\u00a0 His footage foreshadows the rapidly approaching future where everything can be filmed serendipitously by folks wearing devices like Google Glass without the knowledge of the parties involved.\u00a0<\/em><\/p>\n

Christophe Gevrey, First Arrest Captured by Google Glass, Foreshadows \u2018Everything Recorded\u2019 Future<\/i>, Tech. Watch (July 7, 2013), http:\/\/cri.ch\/p1603.<\/p>\n

[65] See <\/i>Ron Dicker, You Need <\/i>t<\/i>o Watch <\/i>T<\/i>his Video, <\/i>b<\/i>ut Its Ending Will Disturb You<\/i>, Huffington Post (Mar. 7, 2014, 4:09 PM), http:\/\/www.huffingtonpost.com\/2014\/03\/07\/google-glass-domestic-violence_n_4920840.html.<\/p>\n<\/div>\n

\n

[66] Wes Blankenship, Gray Fire Chief Using Google Glass<\/i>, 13 WMAZ (Sept. 27, 2013, 2:31 PM), http:\/\/www.13wmaz.com\/story\/news\/local\/gray-jones\/2013\/11\/03\/3424151\/.<\/p>\n

[67] The ACLU advocates for a similar technology\u2014lapel cameras to be worn by police and turned on during all interactions with the public in order to reduce and monitor police misconduct; Google Glass could be used the same way.\u00a0 See <\/i>Timothy B. Lee, Here\u2019s Why Cops Should Be Required to Wear a Lapel Camera While on Duty<\/i>, Wash. Post (Oct. 10, 2013 9:17 AM), http:\/\/www.washingtonpost.com\/blogs\/the-switch\/wp\/2013\/10\/10\/heres-why-cops-should-be-required-to-wear-a-lapel-camera-while-on-duty\/?tid=rssfeed.\u00a0 In February 2014, the New York Police Department bought a few pairs, so perhaps we will see such use soon.\u00a0 See <\/i>Natasha Lennard, Of Course the NYPD Is Testing Google Glass<\/i>, Salon (Feb. 7, 2014, 3:29 PM), http:\/\/www.salon.com\/2014\/02\/07\/of_course_the_nypd_are_testing_out_google_glass\/.<\/p>\n<\/div>\n

\n

[68] See<\/i> Zina Moukheiber, Philips Wants to Bring Google Glass to the Operating Room<\/i>, Forbes (Oct. 3, 2013, 1:06 PM), http:\/\/www.forbes.com\/sites\/zinamoukheiber\/2013\/10\/03\/philips-wants-to-bring-google-glass-to-the-operating-room\/ (describing a proposed use for patient monitoring during surgery); Rachael Rettner, Google Glass Used To Livestream ACL Surgery<\/i>, Huffington Post (Aug. 27, 2013, 1:51 PM), http:\/\/www.huffingtonpost.com\/2013\/08\/27\/google-glass-surgery-ohio-state-university_n_3824455.html (describing one of the first uses of Glass to live-stream an operation, with video); see also<\/i> Murray Carpenter, Doctors Foresee a Google Glass View of Surgeries<\/i>, Boston Globe (Sept. 30, 2013), http:\/\/www.bostonglobe.com\/business\/2013\/09\/29\/doctors-see-many-uses-for-google-glass-operating-room\/LpuqiKpGACCLAXIO9Ttq2M\/story.html.<\/p>\n<\/div>\n

\n

[69] See <\/i>Brin, supra<\/i> note 11.<\/p>\n<\/div>\n

\n

[70] This section will hereafter use the term \u201crecordings\u201d to primarily refer to videos as they will likely be the most relevant evidence to be introduced, but photos would survive the same inquiry.<\/p>\n<\/div>\n

\n

[71] See <\/i>Fredric Lederer, Technology-Enhanced Trial and Appellate Courtrooms: A Primer and an Update<\/i>, CLTC 2013, http:\/\/www.ctc2013.com\/Education-Program\/Tuesday-Sept-17\/Morning\/Session-1\/Courtroom-21.aspx (last visited Mar. 6, 2014) (script on file with the CLCT and author).<\/p>\n<\/div>\n

\n

[72] Id.<\/i><\/p>\n<\/div>\n

\n

[73] See id.<\/i><\/i><\/p>\n<\/div>\n

\n

[74] It should be noted that under current evidentiary rules, \u201cthere is nothing \u2018magical\u2019 about the admission of electronic evidence,\u201d such that ESI is not treated significantly differently than traditional evidence.\u00a0 Jonathan D. Frieden & Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence<\/i>, 17 Rich. J.L. & Tech. 5, \u00b62 (2011), http:\/\/jolt.richmond.edu\/v17i2\/article5.pdf.<\/p>\n

[75] Lorraine v. Markel Am. Ins. Co.<\/i>, 241 F.R.D. 534, 538 (D. Md. 2007).<\/p>\n<\/div>\n

\n

[76] For a more thorough study of the admissibility of ESI than will be offered by this Article, see Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored Information: It’s Still the Same Old Story<\/i>, 23 J. Am. Acad. Matrim. Law. 45 (2010); see also <\/i>The Future of Evidence: How Science & Technology Will Change the Practice of Law 93-97, 114-15 (Carol Henderson & Jules Epstein eds., 2011) (discussing digital recording evidence and augmented reality evidence presentation).<\/p>\n<\/div>\n

\n

[77] Lorraine<\/em>, 241 F.R.D. at 538.<\/p>\n<\/div>\n

\n

[78] Fed. R. Evid. 401.<\/p>\n<\/div>\n

\n

[79] Fed. R. Evid. 403.<\/p>\n<\/div>\n

\n

[80] Fed. R. Evid. 901(a).<\/p>\n<\/div>\n

\n

[81] Fed. R. Evid. 901(b).<\/p>\n<\/div>\n

\n

[82] See <\/i>Finkelstein & Storch, supra<\/i> note 76, at 49.<\/p>\n<\/div>\n

\n

[83] See <\/i>Fed. R. Evid. 901(b)(1).<\/p>\n

[84] Fed. R. Evid. 1002.<\/p>\n<\/div>\n

\n

[85] Fed. R. Evid. 1001(d).<\/p>\n<\/div>\n

\n

[86] See <\/i>Fed. R. Evid. 1001(e) (\u201cA \u2018duplicate\u2019 means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.\u201d).<\/p>\n<\/div>\n

\n

[87] Fed. R. Evid. 1003.<\/p>\n<\/div>\n

\n

[88] Fed. R. Evid. 801(c).<\/p>\n<\/div>\n

\n

[89] See <\/i>Fed. R. Evid. 802; see also<\/i> 29 Am. Jur. 2d Evidence<\/i> \u00a7 671.<\/p>\n<\/div>\n

\n

[90] See <\/i>Fed. R. Evid. 801-803.<\/p>\n<\/div>\n

\n

[91] See, e.g.<\/i>, Ronald J. Allen, A Response <\/i>to Professor Friedman: The Evolution of the Hearsay Rule to a Rule of Admission<\/i>, 76 Minn. L. Rev. 797, 797, 801 (1992); David Alan Sklansky, Hearsay\u2019s Last Hurrah<\/i>, 2009 Sup. Ct. Rev. 1, 3 (2009).<\/p>\n<\/div>\n

\n

[92] Laurence H. Tribe, Triangulating Hearsay<\/i>, 87 Harv. L. Rev. 957, 958 (1974).<\/p>\n<\/div>\n

\n

[93] As this Article argues in Part III, the particular value of Glass recordings is that they counteract witness testimony credibility and reliability concerns.<\/p>\n<\/div>\n

\n

[94] This author recognizes that Glass recordings are not infallible.\u00a0 For example, they may be limited by the duration of the clip or amount of a scene that is captured in the frame.\u00a0 These issues, however, are better dealt with by Rule 403 or the rule of completeness (pursuant to Rules 106 and 611).<\/p>\n<\/div>\n

\n

[95] See <\/i>Jeffrey Bellin, eHearsay<\/i>, 98 Minn. L. Rev. 7, 35 (2013).<\/p>\n<\/div>\n

\n

[96] Id.<\/i> at 36.\u00a0 The language of this section is to be added under Rule 804 when the declarant is unavailable as a witness, and a similar exemption is included in Rule 801 which defines itself in reference to this section.\u00a0 See id.<\/i>\u00a0 It should be noted that the applicability of an eHearsay exception to both present and unavailable witnesses is already a point of contention.\u00a0 See<\/i> Colin Miller, No Explanation Required? A Reply to Jeffrey Bellin\u2019s eHearsay<\/i>, 98 Minn. L. Rev. Headnotes 34, 71-72\u00a0 (2013).\u00a0 This said, a rule accommodating both testifying witnesses and those unavailable to testify would best suit Glass recordings.\u00a0 It is certainly possible to imagine a situation in which the Glass video recording exists but the witness who recorded the video is unavailable to testify (for example, someone suffering from a serious bodily injury, perhaps from that activity which he recorded), and the reliability interests served by the hearsay rules are still protected.\u00a0 In other words, so long as the recording can still be authenticated, its reliability does not really depend on the witness\u2019 presence in court.<\/p>\n<\/div>\n

\n

[97] Bellin, supra<\/i> note 95, at 39.<\/p>\n

[98] See Recording Phone Calls and Conversations<\/i>, Digital Media L. Project, http:\/\/www.dmlp.org\/legal-guide\/recording-phone-calls-and-conversations (last updated Aug. 15, 2012) (including California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington).\u00a0 Some of these states recognize a limited exception when the parties have no reasonable expectation of privacy.\u00a0 See, e.g.<\/i>, Flanagan v. Flanagan, 41 P.3d 575, 582 (Cal. 2002) (limiting the state\u2019s statute to communications in which one party has an objectively reasonable expectation that no one is listening in or overhearing the conversation); State v. Townsend, 57 P.3d 255, 259 (Wash. 2002) (recognizing that whether a conversation is protected depends in part on the reasonableness of the speaker\u2019s expectation of privacy).\u00a0 For state-by-state details, the Digital Media Law Project\u2019s legal guide is a useful resource.\u00a0 See State Law: Recordings<\/i>, Digital Media L. Project, http:\/\/www.dmlp.org\/legal-guide\/state-law-recording (last visited April 23, 2014).<\/p>\n<\/div>\n

\n

[99] Individuals should also remember that these wiretapping\/recording statutes may allow for a private civil suit or involve criminal penalties.\u00a0 For a state-by-state table, see Reporters Comm. For Freedom Of The Press, Reporters\u2019 Recording Guide 3 (2012), http:\/\/www.rcfp.org\/rcfp\/orders\/docs\/RECORDING.pdf.<\/p>\n<\/div>\n

\n

[100] See, e.g.<\/i>, Cal. Penal Code \u00a7 632(d) (West 2010); Or. Rev. Stat. Ann. \u00a7 41.910 (West 2003); Va. Code Ann. \u00a7 8.01-420.2 (West 1992).<\/p>\n<\/div>\n

\n

[101] Indeed it already has been\u2014one of the earliest Glass recordings was of a public arrest.\u00a0 See <\/i>Hu, supra <\/i>note 60.<\/p>\n<\/div>\n

\n

[102] See<\/i> ACLU v. Alvarez, 679 F.3d 583, 594-95 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).\u00a0 The Department of Justice has concurred with these decisions, recognizing \u201cimportant First, Fourth and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties.\u201d\u00a0 Letter from Jonathan M. Smith, Chief, Special Litig. Section, United States DOJ, to Mark H. Grimes, Office of Legal Affairs, Balt. Police Dep\u2019t (May 14, 2012), available at <\/i>http:\/\/www.justice.gov\/crt\/about\/spl\/documents\/Sharp_ltr_5-14-12.pdf.<\/p>\n

[103] For more on this distinction, see Jonathan Zittrain, The Future of the Internet\u2014and How to Stop It, ch. 9 (2008), available at<\/i> http:\/\/yupnet.org\/zittrain\/archives\/20 (distinguishing \u201cPrivacy 1.0\u201d as that associated with government and corporate databases from \u201cPrivacy 2.0,\u201d associated with peer production).\u00a0 For a broader account of technology and privacy in what is likely the first book to substantially address Google Glass, see Robert Scoble & Shel Israel, Age of Context: Mobile, Sensors, Data and the Future of Privacy 38-40 (2014).<\/p>\n<\/div>\n

\n

[104] See Google Glass and Privacy<\/i>, EPIC, http:\/\/epic.org\/privacy\/google\/glass\/default.html (last visited Mar. 5, 2014); see also<\/i> Privacy Risks of Google Glass and Similar Devices<\/i>, 21 S.C. Empl. L. Letter 10 (2013).\u00a0 Thirty-nine states have published this article (in respective state editions of Employment Law Letter<\/i>) under the aforementioned title, or as \u201cAre high-tech glasses blurring the lines of privacy?<\/i>\u201d<\/p>\n<\/div>\n

\n

[105] See Google Glass and Privacy<\/i>, supra<\/i> note 103.\u00a0 For example, with all of the data stored on Google\u2019s cloud, it is susceptible to collection by government agents.\u00a0 See, e.g.<\/i>, <\/i>Barton Gellman & Ashkan Soltani, NSA Infiltrates Links to Yahoo, Google Data Centers Worldwide<\/i>, Snowden Documents Say, <\/i>Wash. Post (Oct. 30, 2013), http:\/\/www.washingtonpost.com\/world\/national-security\/nsa-infiltrates-links-to-yahoo-google-data-centers-worldwide-snowden-documents-say\/2013\/10\/30\/e51d661e-4166-11e3-8b74-d89d714ca4dd_story.html.\u00a0 At the symposium, Where There Is No Darkness: Technology and the Future of Privacy<\/i>, Jeffrey Rosen also acknowledged the potential use of Glass in government surveillance and the limitations of the Fourth Amendment in protecting individual\u2019s privacy.\u00a0 See <\/i>Jeffrey Rosen, Keynote Address, Symposium, Where There Is No Darkness: Technology and the Future of Privacy<\/i>, 65 Rutgers L. Rev. 965, 968 (2013).<\/p>\n<\/div>\n

\n

[106] See Google Glass and Privacy<\/i>, supra <\/i>note 104.<\/p>\n<\/div>\n

\n

[107] Google Glass:<\/i> Glass and Facial Recognition<\/i>, Google+ (May 31, 2013), https:\/\/plus.google.com\/111626127367496192147\/posts\/fAe5vo4ZEcE.\u00a0 But see<\/i> Press Release: Facialnetwork.com Announces Beta Release of \u201cNametag\u201d the First Real-Time Facial Recognition App for Google Glass<\/i>, NameTag, http:\/\/www.nametag.ws\/ (last visited Mar. 18, 2014) (explaining that apps allowing for real-time facial recognition for Google Glass are currently under development).<\/p>\n

[108] See<\/i> Letter from Sen. Joe Barton et al. to Mr. Larry Page, Chief Exec. Officer, Google, available at <\/i>http:\/\/www.scribd.com\/fullscreen\/142042403?access_key=key-vty16tj03c2fbrz4bk1&allow_share=true&escape=false&view_mode=scroll; see also <\/i>Claire Cain Miller, Lawmakers Show Concerns About Google\u2019s New Glasses<\/i>, N.Y. Times (May 17, 2013), http:\/\/www.nytimes.com\/2013\/05\/17\/technology\/lawmakers-pose-questions-on-google-glass.html?_r=2&.<\/p>\n<\/div>\n

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[109] \u201c[A]uthorities across the globe have demanded clarification about the privacy implications of its new product Google Glass, which can take pictures and video without onlookers knowing.\u201d\u00a0 Rebecca Lowe, Head in the Cloud<\/i>, 9 In-House Persp., no. 4, 2013, at 9, 13 (2013).\u00a0 For their June 2013 letter to Google (signed by representatives from Mexico, Israel, Canada, New Zealand, Australia, Switzerland, and a Dutch representative from the European Commission) and Google\u2019s response, see Privacy Statements: Google Glass<\/i>, OIAC, available at <\/i>http:\/\/www.oaic.gov.au\/news-and-events\/statements\/privacy-statements\/google-glass\/ (last visited Mar. 18, 2014).<\/p>\n<\/div>\n

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[110] See <\/i>Albert Costill, Top 10 Places that Have Banned Google Glass<\/i>, Search Engine J. (Aug. 7, 2013), http:\/\/www.searchenginejournal.com\/top-10-places-that-have-banned-google-glass\/66585\/; see also Google Glasses Banned<\/i>, 5 Point Caf\u00e9 (Mar. 11, 2013), http:\/\/the5pointcafe.com\/google-glasses-banned\/.<\/p>\n<\/div>\n

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[111] Compare <\/i>Daniel J. Simons & Christopher F. Chabris, Is Google Glass Dangerous?<\/i>, N.Y. Times (May 24, 2013) (noting the increased distraction when drivers are communicating, including with hands-free devices, and referencing studies of commercial airline pilots that suggest windshield displays reduce their awareness of their surroundings), with<\/i> Ryan Warner, What Is It Like to Drive With Google Glass?<\/i>, Slate (Aug. 7, 2013, 12:24 PM), http:\/\/www.slate.com\/blogs\/quora\/2013\/08\/07\/google_glass_what_s_it_like_to_drive_wearing_glass.html (describing the ease of using Glass while driving for navigation purposes, without feeling distracted).\u00a0 Google\u2019s take on this debate emphasizes responsible individual use.\u00a0 See<\/i> Google Glass Help: FAQ<\/i>, Google Glass, https:\/\/support.google.com\/glass\/answer\/3064131?hl (last visited Oct. 31, 2013) (\u201cAs you probably know, most states have passed laws limiting the use of mobile devices while driving any motor vehicle, and most states post those rules on their department of motor vehicles websites.\u00a0 Read up and follow the law!\u00a0 Above all, even when you\u2019re following the law, don\u2019t hurt yourself or others by failing to pay attention to the road.\u201d).<\/p>\n<\/div>\n

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[112] See<\/i> A.B. 4146, 215th Leg. 2d Sess. (N.J. 2013) (originally introduced June 6, 2013), available at<\/i> http:\/\/www.njleg.state.nj.us\/2012\/Bills\/A4500\/4146_I1.PDF (\u201cThis bill prohibits the use of a wearable computer with head mounted display, such as Google Glass, by an operator of a moving motor vehicle on a public road or highway. . . .\u00a0 Any person who violates the provisions of the bill is subject to a $100 fine, but shall not be assessed any motor vehicle points or automobile insurance eligibility points.\u201d), reintroduced as <\/i>A.B. 1802, 216th Leg., 1st Sess. (N.J. 2014); S.B. 6435,\u00a0 237th Sess. (N.Y. 2014), available at <\/i>http:\/\/assembly.state.ny.us\/leg\/?default_fld=&bn=S06435&term=2013&Text=Y; H.R. 3057 (amending New York\u2019s vehicle and traffic law to those wearing head-mounted portable electronic devices while driving); H.B. 3057, 2013 Leg., Reg. Sess. (W.V. 2013), available at<\/i> http:\/\/www.legis.state.wv.us\/Bill_Status\/bills_text.cfm?billdoc=hb3057%20intr.htm&yr=2013&sesstype=RS&i=3057 (amending\u00a0 Section 17C-14-15 of the Code of West Virginia prohibiting use of cell phones while driving to include \u201c[u]sing a wearable computer with head mounted display\u201d); Jemima Kiss, UK Set to Ban Google Glass for Drivers<\/i>, Guardian (July 31, 2013, 1:59 PM), http:\/\/www.theguardian.com\/technology\/2013\/jul\/31\/google-glass-drivers; see also <\/i>Erik Ortiz, Driving While Wearing Google Glass<\/i>, N.Y. Daily News (July 13, 2013, 11:16 AM), http:\/\/www.nydailynews.com\/news\/national\/google-glass-wearable-computers-pose-driving-hazard-article-1.1397898.<\/p>\n<\/div>\n

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[113] Glass Explorer Cecilia Abadie described and posted a picture of the ticket she received for \u201cDriving with Monitor visible to Driver (Google Glass)\u201d on her Google+ page.\u00a0 Cecilia Abadie, A Cop Just Stopped Me and Gave Me a Ticket<\/i>, Google+ (Oct. 30, 2013), https:\/\/plus.google.com\/+CeciliaAbadie\/posts\/Kofr18UWLfc.\u00a0 In early 2014, the San Diego traffic court cleared Abadie of the traffic citation as the police officer could not prove beyond a reasonable doubt that her Glass device was in operation.\u00a0 See <\/i>Bill Chappell, \u2018Google Glass Driver\u2019 Is Cleared in San Diego Court<\/i>, NPR (Jan. 16, 2014 7:35 PM), http:\/\/www.npr.org\/blogs\/thetwo-way\/2014\/01\/16\/263152869\/-google-glass-driver-is-cleared-in-san-diego-court.<\/p>\n<\/div>\n

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[114] It is unclear whether this will be addressed at a national level, as a spokesman for the Congressional Committee for Transportation and Infrastructure said the topic had not been discussed.\u00a0 Even if raised as a national issue, due to federalism and state sovereignty concerns, it is best left to individual state legislatures.\u00a0 See <\/i>Jon M. Chang, Wearing Google Glass While Driving Could Earn You a Ticket<\/i>, ABC News (Oct. 30, 2013), http:\/\/abcnews.go.com\/Technology\/google-glass-ticket-woman-san-diego-traffic-ticket\/story?id=20729351.<\/p>\n<\/div>\n

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[115] J. Herbert B. Dixon Jr., Technology and the Courts: A Futurist View<\/i>, 52 Judges\u2019 J., Summer 2013, at 36, 37, available at <\/i>http:\/\/www.americanbar.org\/content\/dam\/aba\/publications\/judges_journal\/2013_sum_jj_tech.authcheckdam.pdf.<\/p>\n

[116] See <\/i>Eric Kuhn, What If Trayvon Martin Was Wearing Google Glasses?<\/i>, Medium, https:\/\/medium.com\/i-m-h-o\/10d425badda8 (last visited Mar. 18, 2014).<\/p>\n<\/div>\n

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[117] See<\/i> Andrew Leonard, It Is Not Crazy to Wonder If Google Glass Would Have Saved Trayvon Martin<\/i>, Salon (July 15, 2013, 12:03 PM), http:\/\/www.salon.com\/2013\/07\/15\/it_is_not_crazy_to_wonder_if_google_glass_would_have_saved_trayvon_martin\/ (\u201cThe idea that Google Glass, right now, with its high retail price, might offer any protection for the Trayvon Martins of the world is absurd. . . .\u00a0 [T]here\u2019s no magic bullet against racism, injustice, and cold-blooded murder coming from Silicon Valley.\u00a0 But the cost of Google Glass-capable technology will fall. . . .\u00a0 It will<\/em> be easier and easier and cheaper and cheaper to hit the record button when threatened or when seeing someone else threatened.\u201d).<\/p>\n<\/div>\n

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[118] Andrew Couts, Google Glass Could Have Saved Trayvon Martin (and George Zimmerman)<\/i>, Digital Trends (July 16, 2013), http:\/\/www.digitaltrends.com\/opinion\/google-glass-could-have-saved-trayvon-martin-and-george-zimmerman\/.<\/p>\n<\/div>\n

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[119] See <\/i>Leonard, supra <\/i>note 117 (\u201c[W]e\u2019re already living in a society where we are being watched and recorded and surveilled by others all the time.\u00a0 We might as well be watching them back.\u00a0 And we clearly think there is value in doing so, or we wouldn\u2019t be so quick to click record on our phones.\u00a0 Whatever we use in the future might not be called Google Glass, but there\u2019s little doubt cheaper, easier-to-use, ubiquitously-available video recording technology will continue to spread.\u00a0 It\u2019s not insane to think that someone\u2019s life might be saved by it.\u201d).<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

DownloadPDF Cite as: Kristin Bergman, Cyborgs in the Courtroom: The Use of Google Glass Recordings in Litigation, 20 Rich. J.L. & Tech. 11 (2014), http:\/\/jolt.richmond.edu\/v20i3\/article11.pdf. Kristin Bergman* I.\u00a0 Introduction\u00a0 [1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The future is now. \u00a0Wearable computers such as Google Glass (Glass) have begun entering society\u2014we see people wearing these devices on the streets, in classrooms, […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-2181","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-zb","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/2181","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=2181"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/2181\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=2181"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=2181"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=2181"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}