See also U.S. Federal Rules of Evidence. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
Publisher
U.S. Department of Justice Executive Office for United States Attorneys
Critical Arguements
CA "This article explains some of the important issues that can arise when the government seeks the admission of computer records under the Federal Rules of Evidence. It is an excerpt of a larger DOJ manual entitled 'Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations,' which is available on the internet at www.cybercrime.gov/searchmanual.htm." Cites cases dealing with Fed. R. Evid. 803(6).
Phrases
<P1>Most federal courts that have evaluated the admissibility of computer records have focused on computer records as potential hearsay. The courts generally have admitted computer records upon a showing that the records fall within the business records exception, Fed. R. Evid. 803(6). <P2> 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 (7th Cir. 1990); United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988); Capital Marine Supply v. M/V Roland Thomas II, 719 F.2d 104, 106 (5th Cir. 1983). <P3> Applying this test, the courts have indicated that computer records generally can be admitted as business records if they were kept pursuant to a routine procedure for motives that tend to assure their accuracy. <warrant>
Conclusions
RQ "The federal courts are likely to move away from this 'one size fits all' approach as they become more comfortable and familiar with computer records. Like paper records, computer records are not monolithic: the evidentiary issues raised by their admission should depend 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-generated records, 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 the records' contents. ... As the federal courts develop a more nuanced appreciation of the distinctions to be made between different kinds of computer records, they are likely to see that the admission of computer records generally raises two distinct issues. First, the government must establish the authenticity of all computer records by providing 'evidence sufficient to support a finding that the matter in question is what its proponent claims.' Fed. R. Evid. 901(a). Second, if the computer records are computer-stored records that contain human statements, the government must show that those human statements are not inadmissible hearsay."
