WOLFSON REDO.DOC 9/20/2005 9:13 AM 151 NOTE “Electronic Fingerprints”: Doing Away with the Conception of Computer-Generated Records as Hearsay Adam Wolfson* Introduction “Every statement has a dual nature, it is both a fact and the assertion of fact, and on the guise in which it appears depends whether it is original evi-dence or hearsay, the respectable Dr. Jekyll is received with a becoming respect, but the disrespectable Mr. Hyde is kicked ignominiously out of court.”1 One night, in the hours just before daybreak, the computer servers at Acme Corporation’s headquarters quietly hum in the silence of the office’s darkened hallways. Suddenly, they waken to life and begin haphazardly sift-ing through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick—lasting only a short five minutes—but the evidence of invasion is apparent to Acme’s IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe to be the hacker. During the trial, sev-eral witnesses testify about the attack and its resulting damage. The only piece missing is the hacker’s identity. In order to prove this, the prosecution wishes to introduce the mainframe’s records of the attack, which document both the source of the invasion and the signature of the computer that con-ducted the entire event. A cursory check by computer specialists matched these records with the accused hacker’s personal computer. The prosecutors lay sufficient foundation to authenticate the records and then move to have them admitted into evidence. “Objection!” states the defense counsel. “On what grounds?” replies the judge. “Hearsay, your Honor. The computer records the prosecution is attempting to introduce do not satisfy the business records exception under Federal Rule of Evidence 803(6). They were created in response to an attack, and were not maintained in the ordinary course of business. Consequently, they cannot be admitted under the Rules of Evidence and must be deemed inadmissible.” * J.D. candidate, December 2005, University of Michigan Law School. Special thanks to Pro-fessor Orin Kerr of George Washington University Law School for both help on the topic idea of this Note as well as his continuing input on its development throughout the writing process. 1. J.B.C. Tregarthen, The Law of Hearsay Evidence 10–11 (1915).WOLFSON REDO.DOC 9/20/2005 9:13 AM 152 Michigan Law Review [Vol. 104:151 The judge directs his attention to the prosecution. “Counsel, are there any other exceptions these records fall under?” “No, your Honor.” “Objection sustained.” This result may seem inequitable, but it is entirely possible given the current majority view on the nature of computer-generated records. In order to understand this conception, it is important to first lay out what constitutes hearsay, the rationale for the rule, and the exceptions for computer-generated records. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”2 At its heart, the hearsay rule merely aims to exclude unreliable evidence at trial.3 This “unreliability” is considered to be a product of several factors: (1) hearsay evidence is often not the best evidence of a fact because more direct statements or other evi-dence have far more probative value; (2) a hearsay statement is almost never made under oath; (3) other parties do not have a chance to cross-examine the maker of a hearsay statement; and (4) with a hearsay statement, the judge and jury do not get an opportunity to observe the demeanor of the declarant for credibility purposes.4 American courts do not admit hearsay because it generally creates an unreliable “chain of inferences” that is unacceptable when the aim of a trial is accurate fact finding.5 Most inaccuracies are the result of “the four testi-monial infirmities of ambiguity, insincerity, faulty perception, and erroneous memory.”6 Another danger hearsay raises is that it allows juries to take the statement in question out of context, which can completely change the 2. Fed. R. Evid. 801(c). A “statement” is “(1) an oral or written assertion or (2) nonverbal con-duct of a person, if it is intended by the person as an assertion.” Fed. R. Evid. 801(a). A “declarant” is “a person who makes a statement.” Fed. R. Evid. 801(b). 3. See Lilly v. Virginia, 527 U.S. 116, 131 (1999); Irving Younger, Hearsay: A Practical Guide Through The Thicket 201 (1988) (stating that hearsay is only a rule against unreliable evi-dence); G. Michael Fenner, The Hearsay Rule 4–5 (2003) (“Underneath it all, truth is the objective of the hearsay rule: The hearsay rule is about keeping out evidence that is so unreliable that it does not help us find the truth.”). 4. Andrew L.-T. Choo, Hearsay and Confrontation in Criminal Trials 11–13 (1996). These four factors are applicable in a variety of ways, each having more weight than the others depend-ing on the case. Factors (1), (2) and (3) are the historical rationales for the rule. Id. at 11. Factor (4) has only recently risen to prominence as an accepted reason for upholding the rule as a whole. Id. 5. Laurence H. Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958 (1974). Tribe’s analy-sis parallels that of Choo, supra note 4, but goes a step further in describing the fallacies of eyewitness testimony in general. Tribe, supra, at 957–61. This, along with a triangular graph included in the article, helps to create a “heuristic device” for understanding the problems associated with admitting hearsay statements into evidence. Id. 6. Tribe, supra note 5, at 958. These four infirmities refer to the general problems with any set of in-court testimony. “Ambiguity” refers to statements that need clarification and can be misconstrued on a subsequent retelling. Choo, supra note 4, at 84. “Insincerity,” as the label implies, is the “deliberate lies” some declarants tell in order to alter others’ perceptions of the facts. Id. “Faulty perception” and “erroneous memory” are both phenomena that occur as a matter of course in eyewitness testimony. Id. For further discussion of these “hearsay dangers,” please see
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