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ARTICLE:
DIGITAL DATA AS
HEARSAY By Steven W Teppler
This article examines the proposition that all to attaining admissibility by operation of a hearsay
digital data is hearsay in legal proceedings within exception, that is by a literal adherence to current
the United States of America. This article also requirements, which tends to reflect a service that is
analyzes the inadequacy, if not outright failure, of proffered but not performed.2 Accordingly, these
the current approaches to dealing with the approaches fall short of their intended objective
hearsay exception used to offer computer- because the F.R.E. (and most judicial authority) does not
properly address reliability issues arising from the
generated information into evidence. The author
inherently ephemeral nature of digital data. Although
proposes that until the Federal Rules of Evidence
this shortcoming has been documented since at least as
are revised to reflect the ephemeral nature of early as the 1970’s, the Federal Rules of Evidence have
digital evidence, such evidence should be not been amended to demand of a party seeking to
considered hearsay and deemed inadmissible admit digital data that degree of reliability properly
unless a hearsay exclusionary exception is reflective of the frailty of digital evidence.
successfully asserted. It is further proposed that if Until the Federal Rules of Evidence are revised to
admissibility of digital evidence is sought directly address the ephemeral nature of this new
pursuant to a hearsay exception, such evidence specie of evidence, an argument may be made that all
should be made subject to heightened reliability digital data is hearsay, and that an affirmative showing
requirements. of reliability must be demonstrated if admissibility is to
be sought under an exception to the hearsay rule.
Summary Although two United States Circuit Courts of Appeal
Subject to certain exceptions not pertinent to this have rejected the comprehensive application of the
discussion (unfair prejudice, confusion of the issues and hearsay rule to all digital data, it is contended that well-
such like), all relevant evidence is generally considered established authority from at least one prominent
admissible once a proper foundation has been laid Federal Circuit provides the constitutional basis for
pursuant to Rule 901 of The Federal Rules of Evidence deeming all digital data as hearsay. Moreover, and
(F.R.E.). despite the mostly orthogonal arguments made in
Once authenticated, the F.R.E. provides that hearsay opposition, the undisputed nature of digital data itself
evidence is generally inadmissible unless it falls under compels the conclusion that all digital data is hearsay.
an exception. The F.R.E. defines hearsay as ‘a statement, Finally, this article examines the potential implications
other than one made by the declarant, while testifying of the application of the hearsay evidence rule to digital
at the trial or hearing, offered in evidence to prove the evidence used in both the criminal and civil context.
matter asserted.’1 The two hearsay exceptions generally Until the Federal Rules of Evidence are revised to
applicable to digital data embrace notions of address information in digital format, the
trustworthiness or reliability, and are commonly known ‘trustworthiness’ standards set forth in F.R.E. Rule
as the Business Records Exception found in F.R.E. 803(6) and 807 hearsay exceptions, together with
803(6) and the residual hearsay exception set forth in recent judicial authority, provide the proper standards
F.R.E. Rule 807. These exceptions to the hearsay rule for determination of authentication based on a positive
generally require a showing of reliability (or in the case showing of ‘reliability’, and discuss how such an
of the business records exception, the lack of a emerging concept of ‘reliability’ should be used as the
challenge in relation to reliability). primary condition for admissibility of digital data sought
Since digital data is inherently ephemeral and be offered as evidence.
therefore not demonstrably reliable, there is a low bar
1
Fed. R. Evid. Rule 801(c). 131-149; also Stephen Mason, Electronic Evidence:
2
For instance, the well laid out arguments in George Disclosure, Discovery & Admissibility (LexisNexis
Paul, Foundations of Digital Evidence, (ABA, 2008) Butterworths, 2007) Chapter 4.
© Pario Communications Limited, 2009 Digital Evidence and Electronic Signature Law Review, Vol 6 7DIGITAL DATA AS HEARSAY
Background included as a record of a regularly conducted activity
Digital data is also known as ‘Electronically Stored under what is commonly referred to as the ‘Business
Information’ (ESI) for the purposes of the Federal Rules Records’ exception to the hearsay rule. Judicial authority
of Civil Procedure. Accordingly, for purposes of generally supports the proposition that computer
uniformity, the terms ‘computer generated information,’ generated information is a subset of the umbrella term
ESI, and ‘digital data,’ in any format and however ‘data compilation’ for purposes of analysis under the
stored, are used interchangeably in this article. business records exception:8
The vast majority of information currently generated is
digital in nature.3 It follows that the vast majority of ‘[Defendant] does not dispute the well established
information offered as evidence will also be digital in proposition that “computer data compilations may
nature, and this trend is reflected in the December 2006 constitute business records for purposes of Rule
amendments to the Federal Rules of Civil Procedure.4 803(6), … and may be admitted at trial if a proper
Digital data is inherently malleable, or ephemeral.5 The foundation is established.” United States v. Croft, 750
inherently ephemeral nature of computer-generated F.2d 1354, 1364 (7th Cir.1984) (citing United States v.
data creates new issues that have a significant and Young Brothers, Inc., 728 F.2d 682, 694 (5th Cir.), cert.
detrimental effect on reliability, authentication and denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184
ultimately on the issue of admissibility. To date, these (1984)).’ U.S. v. Hayes 861 F.2d 1225, *1228 (10th Cir.
issues remain largely ignored by both the bench and the 1988).
bar, and directed into unsuitable definitions or relegated
to obsolescent analyses. The reason for this ignorance ‘A business record may include data stored
or misapprehension is probably the result of a basic electronically on computers and later printed out for
misunderstanding of the nature of both computer- presentation in court, so long as the original
generated information and the variable nature of the computer data compilation was prepared pursuant to
computing environment by which such information is a business duty in accordance with regular business
generated. The result of this general misunderstanding practice.’ Potamkin Cadillac Corp. v. B.R.I. Coverage
can be seen in the current mixture of judicial Corp., 38 F.3d 627, 632 (2d Cir.1994). Health Alliance
approaches to the admissibility of digital evidence.6 Network, Inc. v. Continental Cas. Co. 245 F.R.D. 121,
It should be made clear at the outset that the F.R.E. *129 (S.D.N.Y., 2007).
never refers to or directly addresses digital evidence.
The Federal Rules of Evidence predate by decades the A second appearance of the term ‘data compilation’
2006 electronic discovery amendments to the Federal appears in F.R.E. Rule 901(b), but curiously, only from
Rules of Civil Procedure, and so it is not surprising that within the context of authenticating a ‘Public Record’ or
the F.R.E. makes no mention of ESI. Despite the ‘Ancient Documents.’9 A final F.R.E. reference to ‘data
approach of the thirtieth anniversary of near ubiquity, compilation’ is found in Rule 1001, which generally
however, the term ‘computer’ is notably missing from requires that an original is required to prove the content
the F.R.E. Moreover, even the authentication provisions of a writing, recording or photograph.10 ‘Writing and
of Rule 901 refer generally to the accuracy of a ‘process recordings’ are defined in pertinent part to include
or system’ in producing a result7 without indicating ‘letters, words or numbers, or their equivalent, set down
whether the process or system is a computer, or by handwriting, typewriting, printing, photostatting,
whether the result is computer generated information. photographing, magnetic impulse, mechanical or
The term ‘data compilation’ makes one of its rare electronic recording, or other forms of data
appearances in Article VIII F.R.E., and is expressly compilation.’11
3
Peter Lyman and Hal R. Varian, How Much Summer 2005, 379, 387. procedure supplanted, whether it be bookkeeping,
6
Information? at Compare St. Clair v. Johnny’s Oyster & Shrimp, order preparation, or mathematical computation’.
7
http://www2.sims.berkeley.edu/research/projects/ Inc., 76 F. Supp. 2d 773 (S.D. Tex, 1999), digital Fed. R. Evid. Rule 901(b)9.
8
how-much-info-2003/. data taken from the internet described as ‘voodoo Fed. R. Evid. Rule 803(6). Curiously, the F.R.E. Rule
4
Fed. R. Civ. P. Rules 16(b)(5); 26(a)(1)(B), 34(a), information’ with D & H Auto Parts, Inc. v. Ford 807 residual hearsay exception rule makes no
(b); 37; 45(a)(1)(C). Marketing Corp., 57 F.R.D. 548, *552 mention of data compilations.
5 9
Bruce H. Nearon, Jon Stanley, Steven W. Teppler (E.D.N.Y.1973) ‘In relying upon data processing by Fed. R. Evid. Rule 901(b) 7, 8.
10
and Joseph Burton, ‘Life After Sarbanes-Oxley: a machine, there should be no more necessity for Fed. R. Evid. Rule 1002.
11
The Merger of Information Security and oral testimony concerning the reliability of the Fed. R. Evid. Rule 1002.
Accountability’, Jurimetrics Journal, Vol. 45, No. 4, machine operations than that of the manual
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F.R.E. Article X: digital data as ‘source’ data files.16 ‘Source’ data are, therefore always comprised of
With the vast majority of all information generated zeroes and ones that are then processed, or rendered,
today originating as electronic or computer-generated by the operating system and various applications to
data, the inescapable conclusion to be drawn is that produce files. These files are generally further
digital data will become the main source of evidence processed by other applications to produce images that
used in modern litigation. Despite this massive shift in can be viewed on a screen, or can be viewed by printing
specie of evidence, there has been a relative paucity of the data out on to paper.17 Nevertheless, the source data
judicial authority, and certainly no emergent majority for either an image viewed on a screen or a computer-
view dealing with the vagaries inherent in respect of generated paper printout are the binaries, or the
computer-generated information and the directions for ordered sets of zeroes and ones, that comprise the true,
its admissibility into evidence. or source data, used to produce the screen image or
As early as the late 1970’s, judges have written about paper printout. The data (or information) actually read
the need to amend the Federal Rules of Evidence to or perceived by a human reader (or members of a jury)
reflect the unique evidentiary issues presented by the should therefore be considered the last ‘view’ in a set of
inherently ephemeral nature of computer-generated a ‘views of views’ and not the ‘source’ or origination
data.12 Unfortunately, the current Federal Rules of data.18 In other words, while a person might read, hear
Evidence do not directly address the unique or see computer-generated data, it is impossible to
authentication or admissibility issues raised by this read, hear, or see source computer-generated source or
massive shift from evidence in physical format to origination data. In order to perceive source computer
evidence in digital format.13 It is hoped that the recent data as native data, it is necessary to interpret the
amendments to the Federal Rules of Civil Procedure will language in which that data is written (such as ‘C’ or
accelerate corresponding amendments to the Federal ‘Visual Basic’). In order to interpret the language in
Rules of Evidence.14 Until such a time, attorneys and which data is written, it is necessary in turn to
judges will continue to deal with inconsistent, and at understand the language in which it is written. The
times contradictory evaluative admissibility frameworks ultimate aim in understanding or examining computer-
for digital evidence. generated information is to understand the assertions,
Adding to this unwieldy and inconsistent framework is or speech, of the computer programmers (all of which
a general lack of understanding by attorneys and judges are human) who by object code or source code provide
of what constitutes computer-generated information, the instructions to computers to make conditional
and what constitutes ‘source information’. The source statements.
data of all computer-generated information is binary in
nature, and the data processed, viewed, printed out, or Admissibility generally
stored is composed of ordered sets of zeroes and ones.15 The procedural schema in the United States ‘requires
This binary data are acted upon (processed) by other the parties to present trial evidence pursuant to rules
ordered sets of binary data comprising the operating that make it clear when proof has been formally
system and other data processing software applications proffered before it is introduced and then may be
to produce what are commonly referred to as a data considered by the trier of fact in resolving fact issues.
12
2 McCormick on Evidence §294 (6th edition, 2006), Merger of Information Security and This definition has no inherent value in respect of
Commonwealth v. Klinghoffer, 564 A.2d 1240 (Pa. Accountability’. digital evidence. ‘Original’ digital data files can be
16
1989); in a noted 1976 dissent, Judge Van Bruce H. Nearon, Jon Stanley, Steven W. Teppler, reproduced in exact bit for bit copies. Unlike paper
Graafeiland presciently pointed to the need to and Joseph Burton, ‘Life After Sarbanes-Oxley: The ‘originals’ there may never be ‘only one’ original.
amend the rules of evidence to address the Merger of Information Security and Accountability’ Data files may in fact, be ‘duplicate originals’
admissibility issues presented by computer- at 388. created at different times. First instantiation, or
17
generated information; Perma Research and Bruce H. Nearon, Jon Stanley, Steven W. Teppler, origin, however, refers to the characteristics of the
Development v. Singer Co., Van Graafeiland, J and Joseph Burton, ‘Life After Sarbanes-Oxley: The source of the data, the environment (including
dissenting, 542 F.2d 111, 124-26 (2nd Cir.1976): It is Merger of Information Security and Accountability’ controls) and provenance of the initial creation of
unfortunate that more than three decades later, no at 388. digital data. Thus, the adoption and substitution of
18
such amendments have been adopted, and the There is much confusion as to the term ‘original’ the term, ‘first instantiation’ for ‘original’ is
current inconsistent approach to authentication as it applies to computer-generated data. The suggested as more appropriate. It should also be
and admissibility is the direct result of that failure phrase ‘first instantiation’ (which implies ‘origin’) noted that the adoption of this term also permits a
to amend. rather than ‘original’ is used with good reason, disambiguation of the term ‘time’ for digital data
13
2 McCormick on Evidence §294 (6th edition 2006). and exemplifies one of the challenges in adapting creation. While ‘first instantiation’ can have only
14
Fed. R. Civ. P. Rules 16(b)(5); 26(a)(1)(B), 34(a), (b); the application of the Federal Rules of Evidence to one time reference as it relates to data creation,
37; 45(a)(1)(C). computer-generated information. The commonly ‘original’ data can be created at many different
15
Bruce H. Nearon, Jon Stanley, Steven W. Teppler, used definition for original is incompatible with the times.
and Joseph Burton, ‘Life After Sarbanes-Oxley: The concept of ‘initial’ ‘first’ or ‘earliest’ with ‘only.’
© Pario Communications Limited, 2009 Digital Evidence and Electronic Signature Law Review, Vol 6 9DIGITAL DATA AS HEARSAY
The proponent needs to know how to introduce challenge, impeach, or rebut such evidence. The F.R.E.,
evidence, the opponent must know when to object, and together with case law precedent, provides guidelines
the judge needs to know when to rule. The rules of for a court in determining evidentiary rulings.
practice concerning presentation of evidence, offers of The provisions of the F.R.E. lend themselves to a flow
proof, and objections all are designed to secure this chart of actions that must be taken by a party
result.’19 To this end, the F.R.E. provides the contextual submitting digital evidence, and decisions to be made
groundwork (further interpreted by case law) in by a judge, before any such admission into evidence.
accordance with which counsel may offer evidence, or
Figure 1: ESI Admissibility Decision Tree
19
1 McCormick on Evidence §51 (6th edition).
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The decision points of this flow chart are not fixed, excluded. Even if authenticated, the evidence is
and, subject to existing precedent, they provide a judge excluded if deemed hearsay, unless the evidence falls
with the discretion to determine the admissibility of an under an exception to the hearsay rule.24 The result,
item of evidence. Moreover, attorneys are aware that which is common to the operations of Rule 901
evidence, whether a thing, a record, a photograph, or (authentication) and Rule 801 (hearsay rule), is to
testimony, is not admitted automatically into trial for permit or preclude the admissibility of evidence at trial.
scrutiny by a jury or judge. For reasons not pertinent to The authentication provisions of F.R.E. Rule 901 and the
this discussion (such as privilege and prejudice) hearsay exclusionary provisions of F.R.E. 801 may
computer-generated information sought to be admitted therefore be considered to occupy equal status in
(and otherwise admissible) may be excluded (or not respect of admissibility. Finally, the Federal Rules of
permitted to be used at trial).20 It should be understood Evidence permit post-admission introduction before a
that whilst any point reached along the F.R.E. flow chart jury of relevant evidence pertaining to ‘weight or
discussed in this article may be favourably met, credibility.’25
admission is not necessarily guaranteed by laying a Once authenticated, evidence may be deemed
proper foundation for authentication, or by the hearsay and inadmissible, or it may be deemed hearsay
applicability of a hearsay exception. but falling under an exception to the hearsay
Generally, therefore, all relevant evidence that is not exclusionary rule, in which case the evidence maintains
privileged is admissible.21 Once the initial hurdles of its admissible status.
relevancy, privilege, prejudice, and such like have been Hearsay, which is defined as an out-of-court
met by a party offering the evidence, evidence must be statement made by a declarant at a trial or hearing,
authenticated by some means that satisfy the offered in evidence to prove the truth of the matter
requirements of 901(a) F.R.E. that evidence ‘is what it’s asserted, is generally not admissible.26 There are,
proponent claims’, or, as more commonly stated, that however, certain exceptions to the hearsay rule, where,
evidence ‘is what it purports to be.’22 under certain conditions, a court is permitted (but not
required) to admit evidence that would otherwise
‘Traditional’ authentication constitute inadmissible hearsay.27 One major exception
In order for evidence to be admissible, it must be is provided for by F.R.E. Rule 803(6), and is typically
identified or authenticated by extrinsic evidence in a referred to as the Business Records Exception. The
manner that complies with F.R.E. Rule 901(a). Examples residual hearsay exception provided by F.R.E. Rule 807
of methods of authentication are set forth in F.R.E. Rule permits admissibility of other types of hearsay based
901(b). Such methods include the testimony of a upon equivalent showings of circumstantial
witness or witnesses with knowledge, expert opinion, trustworthiness (such as those enumerated in Rules
distinctive characteristics ‘and the like,’ or the efficacy 803 and 804).28
of a particular method or process in producing a
particular result.23 Lack of uniformity in the judicial approach
There is no uniformity of approach in lower court
‘Traditional’ hearsay decisions towards the issue of authentication and
While F.R.E. Rule 901 addresses authentication as a pre- admissibility of computer-generated information offered
condition to admissibility, F.R.E. 801 refers to the as evidence for trial. The issue is complicated by the
exclusion of hearsay evidence even if the party offering absence of any United States Supreme Court guidance
the evidence lays a proper foundation for as to whether digital data is inadmissible hearsay, or
authentication. Accordingly, Article VIII of the Federal not. This lack of Supreme Court guidance has not
Rules of Evidence effectively imposes a post- escaped judicial notice.29 Some judges appear to view
authentication requirement that a hearsay all computer-generated information as hearsay, perhaps
determination be made as a second pre-condition to saved from exclusion by qualifying under the business
admissibility. In order to be admissible, therefore, the records exception.30 Other judges do not consider
evidence offered must first be authenticated or it is certain types of computer-generated data as hearsay,
20 24 29
Fed. R. Evid. 104 (a), 402 (relevance); 403 Fed. R. Evid. Rules 803, 807. Hawkins v. Cavalli 2006 WL 2724145 (N.D. Cal
25
(prejudice, waste of time); 501 (privilege). Fed. R. Evid. Rule 104(e). 2006).
21 26 30
Fed. R. Evid. §§401, 402. Fed. R. Evid. Rule 801(c). St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.
22 27
Fed. R. Evid. 901(a) Fed. R. Evid. Rule 803. Supp. 2d 773 (S.D. Tex, 1999).
23 28
Fed R. Evid. Rules §§901(b)(1), (3), (4) and (9). Fed. R. Evid. Rule 807.
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By categorizing computer-generated information only as a
subset of business records, judges have thus been able to
avoid the central issues that are uniquely inherent to the
authentication of computer-generated information.
and only require an F.R.E. Rule 901(b)(9) showing that preliminary injunction motions, it nevertheless ruled
the evidence is an accurate result from a system or certain print-outs of web pages admissible after
process. In more recent decisions, however, judges have considering the declaration of the party offering the
tended to consider a higher degree of evidential print-outs together with the circumstantial authenticity
reliability, even for laying a foundation under F.R.E. Rule of the content (internet domain address and the date of
901.31 the print-outs).35 Nevertheless, neither the St. Claire nor
The approach to electronic evidence posted on the the Perfect 10 decisions provide any substantive basis
internet by one judge, seems to indicate a marked for concluding that computer generated information is,
disinclination to admit computer-generated information or is not, hearsay.
by labelling such data ‘voodoo information’ incapable of Efforts to date to categorize computer-generated
finding a basis for admission under the ‘most liberal’ information as hearsay or non-hearsay for purposes of
interpretation of the hearsay exception rules.32 The admission into evidence at trial have been far from clear
Court in the St. Clair case places much emphasis on its – indeed, contradictory at times. To date, the Supreme
understanding (some of it presumably apocryphal) of Court has not offered an opinion on the issue.36 It is
computer-generated data: generally agreed that most judges simply (and
conveniently) place digital data into the hearsay
Anyone can put anything on the Internet. No web-site category as business records, and impose the requisite
is monitored for accuracy and nothing contained corresponding contemporaneity, because statements
therein is under oath or even subject to independent under the F.R.E Rule 803(6) business records exception
verification absent underlying documentation. to the hearsay rule.37 By categorizing computer-
Moreover, the Court holds no illusions that hackers generated information only as a subset of business
can adulterate the content on any web-site from any records, judges have thus been able to avoid the central
location at any time. For these reasons, any evidence issues that are uniquely inherent to the authentication
procured off the Internet is adequate for almost of computer-generated information. The Pennsylvania
nothing, even under the most liberal interpretation of Supreme Court recently acknowledged that:
the hearsay exception rules found in Fed.R.Civ.P.
807.33 Judicial decisions to date have largely skirted the
edge of the problem because they have been
Other judicial authority accords a greater degree of concerned mainly with computerized records made in
presumptive trustworthiness or reliability to computer- the regular course of business. [Citations omitted].
generated information and is friendlier to its admission Routinely prepared records, admitted pursuant to
as evidence. The United States District Court for the business records acts such as 28 U.S.C. § 1732 are
Central District of California, relying on a 9th Circuit well recognized exceptions to the hearsay rule,
precedent, specifically eschews the St. Clair approach in because their regular use in the business of the
favour of admitting print-outs of computer logs from a company insures a high degree of accuracy. Proof of
web site.34 Although the court in Perfect 10 day-to-day business reliance upon computerized
acknowledges a reduced evidentiary standard in records should therefore make less onerous the
31
In re Vee Vinhnee, 336 B.R. 437 (9th Cir. BAP Supp. 2d 773 (S.D. Tex, 1999). F.Supp.2d 1146 (C.D. Cal. 2002).
33 35
2005); In re Vargas, 396 B.R. 511 (C.D. Cal. 2008); St. Clair, 76 F. Supp. 2d 773 at 774-775. It is Perfect 10, 213 F. Supp. 2d at 1154.
36
Lorraine v Markel American Life Ins Co, 241 F.R.D. probable that the judge’s reference to Rule 807 is Hawkins v. Cavalli 2006 WL 2724145 (N.D. Cal
534 (D. Md. 2007; State v. Swinton, 847 A.2d 921 actually to Federal Rules of Evidence, and meant 2006).
37
(Conn. 2004); Rodd v. Raritan Radiological to cite the Federal Rules of Evidence Rule 807, and Hawkins v. Cavalli.
Associates, 860 A. 2d 1003 (N.J. Sup. A.D. 2004). not the Federal Rules of Civil Procedure.
32 34
St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Perfect 10, Inc. v. Cybernet Ventures, Inc. 213
12 Digital Evidence and Electronic Signature Law Review, Vol 6 © Pario Communications Limited, 2009DIGITAL DATA AS HEARSAY
burden of laying a proper foundation for their None of these examples can be easily (if at all) included
admission. United States v. Russo, supra, 480 F.2d in the business records category, and it is not surprising
[1228] at 1239-40.38 that there is no authority directly addressing these
examples and evaluating whether they are hearsay or
The Klinghoffer court considered that computer- not. Indeed, it appears that the drafters’ intent,
generated information that was not categorized as a although not specifically mentioned, was to make F.R.E.
business record as hearsay, but (unlike the court in St. Rule 801 a limiting definition (and a limiting evidentiary
Clair), admitted the evidence on the condition of exclusion rule) such that if a specie of evidence did not
meeting the ‘circumstantial guarantees of fit clearly into one of the definitions of hearsay, it was
trustworthiness’ set forth in the residual hearsay not to be considered hearsay:
provisions of F.R.E. Rule 807:
The definition [of hearsay set forth in Rule 801] does
Where, however, a computer is programmed to not in terms say that everything not included within
produce information specifically for purposes of the definition is not hearsay, but that was the
litigation, an entirely different picture is presented. Its intended effect of the rule, according to the Advisory’s
product, which is hearsay and conclusory, is not Committee’s Note.). U.S. v. Hamilton, —-F.3d—-, 2005
admissible under 28 U.S.C. §1732 or similar state WL 1519112, citing John W. Strong, McCormick on
statutes. [Citations omitted]. Under such Evidence, § 246, at 97 (5th edition 1999).41
circumstances, a court should not permit a witness to
state the results of a computer’s operations without With the vast amounts of digital information generated
having the program available for the scrutiny of each year, much of it non-business records, it is clear
opposing counsel and his use on cross-examination. that a well-articulated approach to computer generated
United States v. Dioguardi, 428 F.2d 1033 (2nd Cir.), information that is hearsay that falls into F.R.E. Rule 807
cert. denied, 400 U.S. 825, 91 S.Ct. 50, 27 L.Ed.2d 54 will need to be developed.
(1970). Moreover, such availability should be made
known sufficiently in advance of trial so that the Hearsay, digital data and the ‘declarant’
adverse party will have an opportunity to examine An increase of what at least one judge has called a ‘lack
and test the inputs, program and outputs prior to trial. of understanding’ of computer-generated evidence is a
United States v. Russo, supra, 480 F.2d at 1241.39 new and critical complication that arises out of attempts
to define computer generated information.42 This
Indeed, some state judges have made the requirements complication involves semantics, specifically those
for authenticating a business record interchangeable relating to the concept of hearsay. Hearsay is defined as
with those for laying a foundation for its admissibility a ‘statement, other than one made by the declarant
under the hearsay exception.40 while testifying at the trial or hearing, offered in
The implications arising from these findings of evidence to prove the truth of the matter asserted.’43 A
interchangeability appear to illustrate the poorly statement is defined in part as an oral or written
articulated need to incorporate a requirement of assertion intended to be an assertion.44 A declarant is
showing trustworthiness or reliability (typically a finding defined as a person who makes a statement.45 The
made from within the context of a hearsay Federal Rules of Evidence appear to state, therefore,
determination), into the authentication process. that hearsay does not exist without a declarant, and
It is clear that computer-generated information that is that the pre-condition to being a declarant is that a
not a business record might consist of a digital declarant must be a person. The semantic problems
photograph of an accident scene taken by a bystander, arise from the meaning and application of the term
a computer-generated document containing a home declarant as it appears in the various hearsay provisions
inventory for insurance purposes, or a non-business of the Federal Rules of Evidence. A literal interpretation
related e-mail containing allegedly defamatory matter. of F.R.E. Rule 803 is that a declarant may not be
38 42
Com. v. Klinghoffer, 564 A. 2d 1240, 1242-1243 (Pa exception for business records’. State v. Swinton, 847 A. 2d 921, footnote 24
41
1989). It is perhaps with good reason that the Supreme (Conn. 2004), at 938.
39 43
Klinghoffer, 564 A. 2d at 567. Court of Connecticut noted that the divergent Fed. R. Evid. Rule 801(c).
40 44
F.D.I.C. v. Carabetta, 739 A.2d 301 (Conn. App. views on computer-generated evidence arise in Fed. R. Evid. Rule 801(a).
45
1999) ‘Requirements for authenticating a large part from the lack of understanding by those Fed. R. Evid. Rule 801(b).
business record are identical to those for laying a at the bar and the bench. State v. Swinton, 847 A.
foundation for its admissibility under the hearsay 2d 921, footnote 24 (Conn. 2004), at 938.
© Pario Communications Limited, 2009 Digital Evidence and Electronic Signature Law Review, Vol 6 13DIGITAL DATA AS HEARSAY
computer data or a computer program because neither certain set of conditions, the computer is told to make a
data nor computer program is a person.46 Indeed, two statement on behalf of the computer programmer. That
United States Circuits, and at least one District Judge statement may be another instruction, or it may be
have held that where a computer generates data computer generated information output by the
without the assistance of a person, there is neither a computer.50 The computer only generates information it
‘statement’ nor a ‘declarant’ and therefore no hearsay.47 is instructed to make on behalf of the person instructing
Some courts have distinguished between computer it to make a statement.51 Contrary to popular opinion,
‘generated’ and computer ‘stored’ information in making computers do not make mistakes, nor do they generate
a hearsay determination.48 That line of authority is any information not instructed by a human programmer
emblematic of the result of a lack of understanding of to make. If a mistake is made, it is not the computer
how computers work, as all computer information is that makes a mistake, but the result of a mistaken
always first generated. There can be no storage of statement (i.e., an instruction or assertion) that a
computer information without generation occurring first. computer is told by the programmer to make – whoever
Computer-generated information may then be stored, the programmer may be (that is, a third person may
transmitted, or even deleted, but it must exist before it cause malicious software to be downloaded on to a
is stored, and in order to exist it must be generated. computer, and the computer will thus take instructions
This issue is related to the distinction between ‘original’ from this software).
data, and origination, source, or first instantiation, of The Hamilton case provides a good starting example
computer generated information. Accordingly, an of how a court can get it wrong, even by drawing a
analysis in relation to ‘generated’ and ‘stored’ data is conclusion that is not supported by logic. Here, the
fiction, and creates a distinction without a difference, judge determined that a file header cannot be a
although some might wish the matter was otherwise.49 statement made a person who transmits that file to
another computer over the internet. The Hamilton court
Digital data is hearsay accordingly ruled that there is no hearsay because there
There is a plausible argument that can be made in is no person making a declaration as required by F.R.E.
support of the proposition that all digital data 801(b). However, the commands contained in computer
constitutes some type of hearsay. Certain assumptions programs to create a file header, to transmit a file, to
must first be made. First, computer generated receive a file, to create a log of file creation,
information of any type, whether output, operating transmission or receipt activities, and to enter or not
system or application files or data, and even the enter information into a log file, are all statements and
metadata, are statements made by a computer may be considered to be a declaration of a person, that
programmer or like person. These statements, or person being a programmer instructing a computer to
assertions, are conditional statements, which in make such statement in his or her stead. The
essence provide instructions to a computer that, given a instructions generally provide for the following analysis:
46
Stevenson v. State, 920 S.W.2d 342 (Tex.App.- documents in TIFF, rather than in native data designer entered code to the web page to make it
Dallas 1996). Computer not a declarant and format, claiming that while it might have red when viewed. For an exhaustive analysis of
information generated by a computer held not to ‘generated’ such information in ‘live’ or native this case, see Stephen Mason, general editor,
be hearsay. format, it ‘stored’ such information only as TIFF International Electronic Evidence, (British Institute
47
United States v. Hamilton, 413 F.3d 1138, 1142 format files. The difference between generated of International and Comparative Law, 2008),
(10th Cir.2005) (file header information and stored here is significant. The ‘generated’ ESI xxxvi-lxxv.
51
accompanying pornographic images uploaded to here would have provided searchable content and The traditional approach to hearsay evidence has
the internet held not to be hearsay); see also metadata. The TIFF files produced were not more concerned with the elimination of second
Hawkins v. Cavalli, 2006 WL 2724145 at p. 12 (N.D. searchable, and contained no metadata. In this hand evidence provided by a witness who for
Cal 2006) header generated by a facsimile instance, the ‘first instantiation’ of data could some reason is not available to be cross examined
machine was not hearsay because “nothing ‘said’ only be the data as generated, and not as in court. This approach fails utterly when faced
by a machine is hearsay”). ultimately stored. If this matter does not settle, with the inherent traits unique to digital evidence.
48
Hawkins v. Cavalli. the author intends to raise the issue before the Whilst it is true that digital evidence is ultimately
49
The author has experienced first-hand attempts to court. generated by a computer, it is also the result of
50
delineate between ESI ‘generated’, and ESI This is demonstrated in the case of State of the speech, or declaration, of at least one
‘stored’ in a litigation matter pending at the Connecticut v Julie Amero (Docket number CR-04- computer programmer, speaking in a particular
publication date of this article. The author’s firm 93292; Superior Court, New London Judicial language, and translated by the computer into
represents the plaintiff, and requested from the District at Norwich, GA 21; 3, 4 and 5 January human readable output. Although the computer is
defendant electronically stored information, in 2007), where the police officer for the prosecution not human, the information it generates
native data format, with all associated metadata, insisted that the colour of a hyper-link proved that represents the declaration of its programmers, as
and as generated by defendant in the conduct of the accused had clicked on to a pornographic web to what human readable output, or statement,
its everyday activities. The defendant produced site because it was red, when in fact the web should be generated.
14 Digital Evidence and Electronic Signature Law Review, Vol 6 © Pario Communications Limited, 2009DIGITAL DATA AS HEARSAY
When a certain condition or conditions are met, I (the uniformity and consistency in relation to the
computer programmer or system administrator) want authentication of digital data, the treatment of
you (the computer) to say ‘this’ and nothing else, on computer-generated information generally as hearsay
my behalf. would be a major step in reaching this aspiration.
This means that a computer and computer program will Determining what is hearsay
only produce information within the purview of the Judicial authority appears to divide computer-generated
instructions contained in the source code of the information into three neat categories for the purpose of
application, or program, and the application or program distinguishing what is hearsay. The first category refers
will only produce information intended to be created by to the creation of computer-generated information input
the declaration of the creator of that application or into a computer solely by a person. The second category
program. An argument can be made, therefore, that refers to that class of computer-generated information
there is, and must always be, a person-declarant for any input into a computer in part by a person, and in part by
computer-generated information. To find that computers a computer application. The third category refers to
autonomously generate information independent of computer information generation created without direct
direct human instruction, (as does the 10th Circuit in human input or assistance.55 A person creating a
Hamilton and the District Court for the Central District of memorandum using a word processing application may
California in Hawkins) resembles anthropomorphism, exemplify the first category. The second category is
and would impart sentience into computing devices that exemplified by a person creating a form for a computer
simply (and at least at present) does not exist.52 to arrange and complete. An example of the third
Moreover, the statement made by a programmer to a category of computer-generated information exists
computer that instructs the computer to make another where a computer creates a record of a transaction with
statement, such as a file header or other metadata, another computer. These categories will be examined
illustrates the computer programmer’s desires and from the perspective of the traditional approach, and
intent to make his or her statement through that will consider the complications and contradictions
computer’s processes. It is not, as so presciently stated either created or left unresolved by that approach.
by Judge Van Graafeiland, merely a ‘calculation’ made a
machine with a ‘giant memory’.53 For instance, the file First category: the memorandum ‘created’ by a
header contains specific information, including a human
statement made by programmer that he or she desires The content of a memorandum is created by a person
to convey if certain conditions are met, including a and is generally considered hearsay whether or not it is
statement of time. Note that ultimately, programmers, also considered a business record. If the memorandum
administrators and human users of a computer are is a business record, the provisions of F.R.E. 803(6)
making statements. Persons make these statements, must be satisfied.56 F.R.E. 803(6) requires that either the
and these statements made by these persons can easily author of the memorandum must give evidence to
be deemed as declarations falling within the purview of provide corroborative testimony, or a ‘custodian or other
the hearsay rule. To date, no authority expressly adopts qualified witness’ must testify that the ‘data
this position.54 If, however, the objective is to provide for compilation’ was ‘made at or near the time by, a person
52
The late Alan Turing is considered by many to be conversation is usually limited to a text-only purpose other than ‘to prove the truth of a
the father of modern binary computing, and he channel such as a teletype machine as Turing matter asserted,’ and thus is hearsay’),
described a ‘test’ for computer independence of suggested or, more recently IRC or instant Watlington v. Commonwealth, 2000 WL 1672871
thought, or sentience. The Turing Test is a messaging; (Benton, J, dissenting and citing Randy Snyder,
proposal for a test of a machine’s capability to http://www.loebner.net/Prizef/TuringArticle.html. ‘Note, Assuring the Competency of Computer-
53
demonstrate thought. Described by Professor Perma Research and Development v. Singer Co., Generated Evidence’, 9 Computer Law Journal
Alan Turing in his paper ‘Computing machinery Van Graafeiland, J, dissenting, 542 F.2d 111, 124 103, 104 (1989). [italics added]
55
and intelligence’ Mind (1950) 59, 433-460, it (2d Cir. 1976). For a similar analysis, see Stephen Mason,
54
proceeds as follows: a human judge engages in a Such analyses are most likely to be found in Electronic Evidence: Disclosure, Discovery &
natural language conversation with two other dissenting opinions, and even then little Admissibility, xiii.
56
parties, one a human and the other a machine; if consideration is given to the analysis. The The memorandum is both an F.R.E. 803(6)
the judge cannot reliably tell which is which, then dissenting opinion in an unpublished Virginia memorandum and a ‘data compilation.’ The
the machine is said to pass the test. It is case considers the issue with the intensity of a difference is that a memorandum has some
assumed that both the human and the machine Klieg light, but ultimately disregards the semantic meaning ascribed to it, transforming it
try to appear human. In order to keep the test categorization of computer-generated into ‘information.’ For the purpose of this
setting simple and universal (to explicitly test the information into ‘hearsay’ and ‘non-hearsay’: example, however, the terms are used
linguistic capability of the machine instead of its ‘…[i]t is unlikely that computer-generated interchangeably.
ability to render words into audio), the evidence will be offered into evidence for some
© Pario Communications Limited, 2009 Digital Evidence and Electronic Signature Law Review, Vol 6 15DIGITAL DATA AS HEARSAY
with knowledge, if kept in the course of a regularly considered a business record. Thus, while the content of
conducted business activity, and if was the regular the memorandum might be hearsay (whether or not a
practice of that business activity to make the ... data business record), the associated metadata responsible
compilation.’ Notably, F.R.E. Rule 803(6) also requires for all aspects of its existence and format inexplicably is
that there be no indications of a lack of trustworthiness not. If the content is a person or declarant, and
as a precondition of admissibility. metadata is anything but a person or declarant, it is
If the memorandum is considered not to be a suggested that a two-step authentication process for
business record, another traditional approach might still such computer-generated data ought to be considered.
deem the contents of the memorandum hearsay, and The content of the memorandum, which is hearsay,
therefore it will be necessary to comply with the pre- would first require determination under the provisions
condition regarding admissibility under the residual of F.R.E. Rule 803(6) or 807. The metadata associated
hearsay requirements set out in F.R.E. 807. These with the memorandum, however, would only require
requirements include, amongst other things, a showing authentication under the provisions of F.R.E. 901(b)(1) or
of the ‘equivalent circumstantial guarantees of 901(b)(9). Under this analysis, the memorandum
trustworthiness’ required by F.R.E. Rules 803 or 804. created by a person and input into a computer could
F.R.E. 807 therefore appears to incorporate, by never be considered to be created only by a person and
reference, the ‘no lack of trustworthiness’ standard set therefore purely hearsay under either F.R.E. 803(6) or
forth in the business records hearsay exception 807. Not surprisingly, the same analysis may be used
provisions of F.R.E. 803(6). where a person creates a form to be filled out by other
There are significant problems with this analysis. All people using various forms of software.
computer-generated information has metadata, or data In other words, while the content of the memorandum
about data, generated in association with the would be considered hearsay, and subject to analysis as
generation of the content itself. The question that then to whether it was hearsay and therefore to be excluded,
arises is whether the data compilation comprising the or an exception and therefore admitted, the metadata
memorandum includes the content of the associated with the content would only need to be
memorandum, and the metadata associated with that authenticated to be admitted. Since the reliability of
memorandum. It must be correct that the additional metadata in some instances may be of greater
data is included with the content.57 That metadata, evidential significance than the content (such as where
which is also computer-generated information, can the metadata, but not the content has been altered)
contain a plethora of information, including source data, issues of reliability, when considering the position on
time and date information, a digital signature, routing the status of hearsay, would attach to both the content
information, date of creation, the last time it was and the metadata. In reality, therefore, computer-
viewed, modifications, the approval of a purported generated information in categories one and two are
person who reviewed the content, and even the one and the same, and should be treated in an identical
application and version of the application with which manner.
the content was created.58 It is asserted by some, that The element of time significantly complicates any
the generation of this data, is made without the input or hearsay analysis. At issue will be what time is referred
assistance from a person. In accordance with decided to as it relates to the memorandum. It could be the time
authority and F.R.E. 801(b), this information could not that the document was created by the purported author
be considered hearsay, even if it otherwise might be of the memorandum; the time stated in the content of
57
An even more intriguing possibility exists where time of an event associated with a memorandum document. In such cases, the Excel® spreadsheet
a person digitally signs an entire data may appear in at least two areas outside the could clearly be considered metadata to the
compilation, including metadata. The digital memorandum that a human is able to view. Word® document. The Excel® document,
signature is a representation of a statement by These times should not differ, but may well do so potentially containing relevant evidence, would
the purported signer, and the metadata by in the event of time-based data manipulation. be rendered totally invisible and undetectable to
definition forms a part of that statement, even Without access to such metadata, a party would the reader perusing the document using Word.® If
though first instantiated by an ‘automated’ not have the ability to test the consistency of the a producing party converted the hybrid Word®
computer process. asserted time of relevancy (if not the reliability of document to PDF format, the format conversion
58
Metadata is not only evidence about evidence, the time itself). A second example supporting the process would strip all the Excel® information.
but is evidence itself. Log files, master file tables, production of metadata in evidence exists in the The production of all relevant metadata is
e-mail headers and the like are all evidence of case of ‘hybrid documents’ or documents of one therefore critical to the efficacy of the discovery
digital events that occur within a computer, and format embedded within documents of another process itself.
these digital events may, by themselves be used format. For instance, it is easy to bring together a
to prove an assertion or claim. For example, the Microsoft Excel document into a Microsoft Word
16 Digital Evidence and Electronic Signature Law Review, Vol 6 © Pario Communications Limited, 2009DIGITAL DATA AS HEARSAY
the memorandum (which may differ from the time the Second category: digital data generated in part
document is recorded as being created); the time that with human assistance
the memorandum was created according to the As discussed above, no computer data can be created or
metadata information (i.e., file properties or file generated by a human without some associated data or
header). In addition, other questions that might be metadata, generated by the computer itself.
posed include the time typed into the memorandum, Accordingly, and in this way, computer-generated
and whether this constitutes a ‘declaration’ by a information described in the first and second categories
‘person’ of the ‘time’ of the declaration. A further issue are identical.
is the time value contained in the metadata, and
whether it is a statement by the person who told the Third category: digital data generated without a
computer to state a specific time on his or her behalf. human being
Arguably, it may be necessary to reconcile the ‘time’
In this category, metadata created during the generation
contained in the content, or ‘hearsay’ portion of the
of computer information, such as a file header (or data
data compilation as being admissible as a part of a
about data) created during an upload of a image file to
‘declaration’ by a ‘person’ with a different ‘time’
a remote computer, has been held not to be hearsay
statement (and statement it is) contained in metadata,
because, using a strict application of the hearsay rule,
which may arguably only be admitted under the F.R.E. there was no ‘person’ making a declaration. In U.S. v.
901(b)(9) ‘accuracy of result’ rule.59 Hamilton, 412 F3d 1138, 2005 WL 1519112 (10th Cir.
If these two ‘times’ differ substantially, and if 2005) the court held:
reliability is the new watchword for admissibility of
computer-generated evidence, there are a number of The district court in this case correctly concluded that
possible permutations: (1) the computer-generated the header information that accompanied each
content with the more ‘reliable’ time is admissible, and pornographic image was not hearsay. Of primary
that the computer-generated information content importance to this ruling is the uncontroverted fact
considered ‘less reliable’ is excluded, (2) that the entire that the header information was automatically
data compilation, including content and metadata, must generated by the computer hosting the newsgroup
be excluded, or (3) that the entire data compilation is each time Hamilton uploaded a pornographic image
admissible. It is respectfully submitted that none of to the newsgroup. In other words, the header
these options can be preferred, because the current information was generated instantaneously by the
criteria for categorizing and evaluating computer- computer without the assistance or input of a person.
generated information are contradictory, cumbersome, As concluded by the district court, this uncontroverted
and ill-suited to accomplish the task. For example, the fact clearly places the header information outside of
first choice would mean a court excludes metadata and Rule 801(c)’s definition of ‘hearsay.’ In particular, there
admit content, or admit metadata but exclude content, was neither a ‘statement’ nor a ‘declarant’ involved
both of which would defeat any possibility of here within the meaning of Rule 801.
establishing the provenance of the computer-generated
information offered as evidence. Excluding or admitting In this instance, a cogent argument appears to be made
the entire data compilation might obviously serve to to the effect that the computer-generated information
further the purpose of one party, but it certainly would created by a remote computer during the process by
detract from the integrity of the evidentiary process in which the remote computer receives computer-
particular, and the efficacy of trial proceedings in generated information transmitted to it from another
general. computer is not a statement of a person, and therefore
Characterizing all computer generated information as not hearsay. In this instance, both metadata information
hearsay, and imposing a ‘reliability’ requirement as an (file header, IP address) as well as the content created
exception to the exclusionary rule, would avoid these by the remote computer might be considered not to be
artificially created distinctions. hearsay and subject only to the ‘accuracy of result’
59
As discussed above, a third possibility is for a the admissibility of both the memorandum (if
court to consider metadata as hearsay, as the deemed hearsay) and its associated metadata
declaration of a person in the position of a would be predicated upon complying with the
computer system or network administrator, a appropriate requirements of admissibility
computer programmer, and the like. In that case, provided under F.R.E. 803(6) or F.R.E. 807.
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