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CMU ISR 08732 - Computer Records and the Federal Rules of Evidence

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U.S. Department of JusticeExecutive Office for United States AttorneysUnited States Attorneys’ USA BulletinMarch 2001 Vol. 49, No.2Computer Records and the Federal Rules of EvidenceOrin S. KerrUSA Bulletin(March 2001)Orin S. KerrTrial AttorneyComputer Crime and Intellectual Property SectionThis article explains some of the important issues that can arise when the government seeks theadmission of computer records under the Federal Rules of Evidence. It is an excerpt of a largerDOJ manual entitled "Searching and Seizing Computers and Obtaining Electronic Evidence inCriminal Investigations", which is available on the internet atwww.cybercrime.gov/searchmanual.htm.Most federal courts that have evaluated the admissibility of computer records have focused oncomputer records as potential hearsay. The courts generally have admitted computer recordsupon a showing that the records fall within the business records exception, Fed. R. Evid. 803(6):Records of regularly conducted activity. A memorandum, report, record, or datacompilation, in any form, of acts, events, conditions, opinions, or diagnoses, madeat or near the time by, or from information transmitted by, a person withknowledge, if kept in the course of a regularly conducted business activity, and if itwas the regular practice of that business activity to make the memorandum, report,record, or data compilation, all as shown by the testimony of the custodian or otherqualified witness, unless the source of information or the method or circumstancesof preparation indicate lack of trustworthiness. The term "business" as used in thisparagraph includes business, institution, association, profession, occupation, andcalling of every kind, whether or not conducted for profit.See, e.g., United States v. Cestnik, 36 F.3d 904, 909-10 (10th Cir. 1994); United States v.Moore, 923 F.2d 910, 914 (1st Cir. 1991); United States v. Briscoe, 896 F.2d 1476, 1494 (7thCir. 1990);United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988);Capital MarineEmail this Document!Page1of9Computer Records and the Federal Rules of Evidence-Orin S. Kerr9/13/2007mhtml:file://C:\CMU\LawCourse2007\readings\Evidence\reviewed\KerrComputerRecords.mhtSupply v. M/V Roland Thomas II, 719 F.2d 104, 106 (5th Cir. 1983). Applying this test, thecourts have indicated that computer records generally can be admitted as business records ifthey were kept pursuant to a routine procedure for motives that tend to assure their accuracy.However, the federal courts are likely to move away from this "one size fits all" approach asthey become more comfortable and familiar with computer records. Like paper records,computer records are not monolithic: the evidentiary issues raised by their admission shoulddepend on what kind of computer records a proponent seeks to have admitted. For example,computer records that contain text often can be divided into two categories: computer-generatedrecords, and records that are merely computer-stored. See People v. Holowko, 486 N.E.2d 877,878-79 (Ill. 1985). The difference hinges upon whether a person or a machine created therecords' contents. Computer-stored records refer to documents that contain the writings of someperson or persons and happen to be in electronic form. E-mail messages, word processing files,and Internet chat room messages provide common examples. As with any other testimony ordocumentary evidence containing human statements, computer-stored records must complywith the hearsay rule. If the records are admitted to prove the truth of the matter they assert, theofferor of the records must show circumstances indicating that the human statements containedin the record are reliable and trustworthy, see Advisory Committee Notes to Proposed Rule 801(1972), and the records must be authentic.In contrast, computer-generated records contain the output of computer programs, untouched byhuman hands. Log-in records from Internet service providers, telephone records, and ATMreceipts tend to be computer-generated records. Unlike computer-stored records, computer-generated records do not contain human "statements," but only the output of a computerprogram designed to process input following a defined algorithm. Of course, a computerprogram can direct a computer to generate a record that mimics a human statement: an e-mailprogram can announce "You've got mail!" when mail arrives in an inbox, and an ATM receiptcan state that $100 was deposited in an account at 2:25 pm. However, the fact that a computer,rather than a human being, has created the record alters the evidentiary issues that thecomputer-generated records present. See, e.g., 2 J. Strong, McCormick on Evidence §294, at286 (4th ed. 1992). The evidentiary issue is no longer whether a human's out-of-court statementwas truthful and accurate (a question of hearsay), but instead whether the computer programthat generated the record was functioning properly (a question of authenticity). See id.; RichardO. Lempert & Steven A. Saltzburg, A Modern Approach to Evidence 370 (2d ed. 1983);Holowko, 486 N.E.2d at 878-79.Finally, a third category of computer records exists: some computer records are both computer-generated and computer-stored. For example, a suspect in a fraud case might use a spreadsheetprogram to process financial figures relating to the fraudulent scheme. A computer recordcontaining the output of the program would derive from both human statements (the suspect'sinput to the spreadsheet program) and computer processing (the mathematical operations of thespreadsheet program). Accordingly, the record combines the evidentiary concerns raised bycomputer-stored and computer-generated records. The party seeking the admission of the recordshould address both the hearsay issues implicated by the original input and the authenticityissues raised by the computer processing.As the federal courts develop a more nuanced appreciation of the distinctions to be madebetween different kinds of computer records, they are likely to see that the admission ofcomputer records generally raises two distinct issues. First, the government must establish theauthenticity of all computer records by providing "evidence sufficient to support a finding thatthe matter in question is what its proponent claims." Fed. R. Evid. 901(a). Second, if thecomputer records are computer-stored records that contain human statements, the governmentPage2of9Computer Records and the Federal Rules of Evidence-Orin S.


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