"Electronic fingerprints": doing away with the conception of computer-generated records as hearsay.

• Author: Wolfson, Adam

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 evidence 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 sifting 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, several 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 conducted 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."

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 evidence 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 testimonial 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 character of the assertion. (7) Because in-court analysis of testimony largely remedies these infirmities, we rightfully exclude hearsay evidence. (8)

With this logic in mind, it is clear why assertive documents and most types of records are textbook examples of hearsay. After all, a "statement" does not always have to be oral. (9) If the document is introduced because its proponent claims that the information contained therein is true, it is the written equivalent of an oral assertion and must therefore meet a valid hearsay exception. (10)

When introducing computer-generated documents, lawyers most commonly use the business records exception. (11) An extension of the historical "shopbook rule," (12) this exception was a response to the advent of the corporate form, which created a heretofore unseen phenomenon: a trial where no physical person was being sued. (13) Since testimony of the corporation's inner workings necessarily incorporated voluminous business records, courts battled with the problem of a rigid hearsay rule that had no true on-point exceptions. (14) In 1936, the Commonwealth Fund Act (15) offered the first codification of the business records exception. (16) The Act's proponents argued that unaltered business records were unusually reliable because businesses themselves rely on these records for day-to-day operations. (17) Congress, commentators, and courts agreed with this rationale's persuasiveness, (18) and the Act passed with minor controversy. (19)

The modern version of the exception deems a "memorandum, report, record, or data compilation" admissible if it is "kept in the course of a regularly conducted business activity." (20) This is a very broad rule (21) because the term "business" includes any "business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." (22) Examples of this broadness in practice include courts admitting as "business records" a blackjack dealer's tip log (23) and calendar notations of daily illegal drug sales. (24)

The other major exception under which computer records are admitted is the public records exception. (25) Under this exception, records must originate from "public offices or agencies" (26) and set forth (1) the activities of the office, (2) matters observed as part of office employees' jobs, or (3) factual findings resulting from an investigation conducted by the office. (27) This exception is predicated on the belief that (1) public records are just as trustworthy as business records because the government relies on them for proper functioning, (2) public employees usually record their activities properly, and (3) government employees are unlikely to remember details independent of the record. (28) Foundation of the records' admissibility, as with business records, may be established by a layperson representative of the government agency. (29)

A third conceivably applicable exception under which computer records may be admitted is the "residual" provision found in Federal Rule of Evidence ("FRE") 807 if there are sufficient "circumstantial guarantees of trustworthiness" and the piece of hearsay is offered as evidence of a material fact without causing undue prejudice against the opposing party. (30) A hearsay proponent who employs this exception must give opposing parties "a fair opportunity" to prepare for the evidence's inclusion in the record. (31) Unfortunately for parties who have no other recourse but FRE 807, this "catch-all" exception is seldom employed because judges are uncomfortable with its extremely powerful and flexible nature. (32)

Almost all federal courts, (33) and many state courts, regard all computer records as hearsay that may only be admitted under the business records (34) or public records exceptions. (35) These courts follow the dissent in Perma Research v. Singer Co., a 1976 Second Circuit decision that considered the admission of computer simulations of anti-skid devices. (36) Noting various hearsay sources Perma Research's experts relied upon in analyzing the simulations' results and conclusions, Judge Van Graafeiland stated in his dissent that he was "not prepared to accept the product of a computer as the equivalent of the Holy Writ." (37) Further, he argued that computers' "ability to package hearsay and erroneous or misleading data in an extremely persuasive format" required that computer evidence satisfy a hearsay exception in order to be admitted. (38) Judge Van Graafeiland's solution contained two approaches: (1) for computer records submitted as business records, simply use the business records exception; and (2) when a computer program is used to produce information specifically for litigation, require the proponent party to make the computer program in question available to the opposing party before trial. (39)

Notably absent in Judge Van Graafeiland's analysis is the possibility that computer evidence might not represent human assertions and therefore not constitute hearsay. The issue of computer-generated data, such as the IP log at Acme Corp., was not addressed in the case. Considering Perma was decided in 1976, when personal computer technology was only beginning to develop, (40) it is likely that the court was not aware of such records.

Almost all federal courts and most state courts apply Judge Van Graafeiland's analysis to all computer records, regardless of source. (41) These courts are stuck in a hearsay rut; while they often rightly define the records as computer-generated--or, at least use the words "computer-generated" (42)--the final logical step on why self-generated records are not hearsay is never reached. (43)

Applying the hearsay exceptions outlined above to computer records means that business records generated in the regular course of business and governmental agency computer records will almost always be admitted at trial. Records that do not fit neatly into these categories, however, are left in an uncertain void where, depending on a court's view of the matter, they may be admitted or just as easily denied. (44) Fortunately, courts seem to implicitly recognize that many types of computer records should be allowed into evidence, and often find some way to admit such data under...