Admissibility of Electronic Information
| Publication year | 2002 |
| Pages | 33-38 |
71 J. Kan. Bar Assn. 8, 33-38 (2002). Admissibility of Electronic Information
71 J. Kan. Bar Ass'n, Septmber 2002, 33-38 (2002)
I. Introduction
This article will discuss relevant authorities regarding the admissibility of electronic evidence. It will provide cases and strategies for laying the proper evidentiary foundation and for persuading the court to allow or exclude electronic "evidence." It will focus particularly on the authentication of electronic information.
II. Authenticating Electronic Information - In General
Although the Federal Rules of Evidence apply in general to computerized data just as they do to other types of evidence, electronic data may raise unique issues concerning the accuracy and authenticity of the information.[1] Accuracy may be impaired as a result of incorrect or incomplete data entry, mistakes in output instructions, programming errors, etc.[2] Further, electronic data is fragile and may be intentionally or unintentionally modified - even turning on a computer can overwrite existing files. Accordingly, the authentication of electronic information is where much of the battle is fought regarding its admissibility. The most common reason that courts have rejected computerized evidence is that an insufficient foundation was laid to show the accuracy and trustworthiness of the evidence.[3]
III. Federal Rules of Evidence
Federal Rule of Evidence 901(a) provides that the requirement to authenticate a document "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."[4] Rule 901 also states that authentication of electronic information may be provided by "evidence describing a processor system used to produce a result and showing that the process or system produces an accurate result," thereby expressly contemplating the admission into evidence of electronic information.[5] "This section is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. ... Among more recent developments is the computer. ..."[6] Thus, the basic steps to authenticating electronic information are to show that the proffered material is both what it is claimed to be and that any systems used are accurate.
IV. Kansas Rules Of Evidence
Unlike the Federal Rules, the Kansas Rules of Evidence do not specifically address computerized information. The Kansas rule on the authentication of evidence generally provides, "Authentication may be by evidence sufficient to sustain a finding of its authenticity or by other means provided by law."[7] Kansas courts have found that electronic information may be properly authenticated, and often rely on federal cases in determining whether electronic information has been properly authenticated.[8]
V. Is a More Extensive Foundation Required for Electronic Data Than for Conventional Records?
As can be expected, courts differ on whether a more extensive foundation is required for electronic data than for conventional records. One case often cited as holding that a more extensive foundation is required is United States v. Scholle.[9] In Scholle, the government introduced into evidence as business records a printout of compiled electronic data.[10] On appeal, the defendant argued that the computer printouts were admitted erroneously without foundation. Although the 8th Circuit ultimately found that the computer printouts were properly authenticated, it stated:
Even where the procedure and motive for keeping business records provide a check on their trustworthiness ... the complex nature of computer storage calls for a more comprehensive foundation. Assuming properly functioning equipment is used, there must be not only a showing that the requirements of the Business Records Act have been satisfied, but in addition the original source of the computer program must be delineated, and the procedures for input control including tests used to assure accuracy and reliability must be presented.
...
In evaluating the admission of the disputed printout, we must consider the reliability of what goes into the computer as well as the reliability of what comes out.[11]
Although Scholle is widely cited, a later 8th Circuit case suggests that computer-generated evidence does not require a more extensive foundation. In United States v. Koontz,[12] the defendant argued that the trial court erroneously admitted a computer-generated booking report from an Iowa jail showing what time an individual was released from jail.[13] The defendant argued the government did not properly authenticate the document and that, because it was computer generated, the report was more likely to be inaccurate.[14] The Eighth Circuit did not find the defendant's argument persuasive (probably because the defendant cited no case law in support of his contention) and concluded, "[W]e see no reason to reject the booking report simply because it was computer generated."[15]
Some courts appear to consider computer-generated information more reliable than conventional records. In United States v. Vela,[16] the district court admitted copies of computerized telephone bills under the business record exception declaring that they "would be even more reliable than ... average business record(s) because they were not even touched by the hand of man."[17]
The Fifth Circuit upheld the decision stating:
[W]hile the suggestion has been made that there are unique foundation requirements for the admission of computerized business records under Rule 803(6) ... this court has previously held that "computer data compilations ... should be treated as any other record of regularly conducted activity."
. . . .
[Defendant's] arguments for a level of authentication greater than that regularly practiced by the company in its own business activities go beyond the rule and its reasonable purpose to admit truthful evidence ... At best, the arguments made go to the weight that should be accorded the evidence, not its admissibility.[18]
At least one court appeared to relax the standard for authenticity given the realities of extensive use of communication technology:
As to the internet and e-mail postings of [defendant's] first motion in limine, the Court recognizes [the defendant's] hearsay concerns, but will receive the evidence in any case ... [Plaintiff's] internet and e-mail submissions are not ideal...
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