Motion to exclude computer-generated evidence—Laying business record exception foundation

Motion to exclude computer-generated evidence—Laying business record exception foundation

The true test of the admissibility of computer-generated documents is the adequacy of the foundation for the evidence, as provided by the proponent of the evidence, to establish the requirements of the business record exception.

Admissibility of computer-generated evidence requires authentification showing that: the computer is functioning properly; the input and underlying equations are sufficiently complete and accurate and disclosed to the opposing party, so that they may challenge them; and the program is generally accepted by the appropriate community of scientists. The second guideline contains a parenthetical requirement of pretrial disclosure. Pretrial disclosure gives the opposing party an adequate opportunity to raise objections by motion in limine and to prepare for cross-examination and rebuttal.FN11 Pretrial disclosure also reduces the need for more exacting foundational requirements. Exclusion of evidence for lack of pretrial disclosure is within the trial court's discretion.FN12

The third requirement, general acceptance, may be specifically challenged by motion in limine. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming to the requirements of this rule.

The foundation for admitting a computer printout as a business record should establish the following:FN13

• The reliability of the data processing equipment used to keep the records and produce the printout
• The manner in which the basic data was initially entered into the system (for example, through punchedcards, entries at a terminal, etc.)
• That the data was entered in the regular course of business
• That the data was entered within a reasonable time after the events recorded by persons having personalknowledge of the events
• The measures taken to ensure the accuracy of the data as entered
• The method of storing the data
• The reliability of the computer programs and formulas used to process the data
• The measures taken to verify the proper operation and accuracy of these programs and formulas
• The time and mode of preparation of the output

Of these issues, the following are the most promising areas for a defense attack:

• Integrity of input data: Normally, low-paid clerks are responsible for transferring information from human-readable documents to machine information. These people may inaccurately type the information they are processing. However, most computer users have procedures for quality assurance to minimize this type of error.
• Integrity of computer components and software: Hardware errors may result in the loss or alteration of data in a computer system. Program errors are more difficult to detect, as complex programs may have to be run for months before all possible conditions are encountered. Programs are tested for the most likely conditions, and as many possible conditions as the testers can anticipate, but as complexity grows, it is increasingly difficult to test for all combinations of input and processing data that the computer program may encounter.FN14
• Security of the computer system: The fact that a person is charged with computer crime is evidence that a computer system may not have been adequately secured. Therefore, in many cases it can be argued that the vulnerability of a computer system to unauthorized access can constitute proof that it is not reliable, and that its records are suspect. Defendants in a computer crime case could argue that this vulnerability rendered the records used to establish their crime inadmissible.
• Integrity of output: A printout must have been produced in the manner described by the foundation witness. If the printout has been signed and dated by a witness when it was produced, this is an assurance of its integrity. Printouts can be the result of programming that causes relevant information not to be produced, or to be biased. The defense counsel will want to examine the foundation witness to make sure that this is not the case.

Where records were produced for trial, and were not normally produced in the ordinary course of business by the computer, it can be argued that they are not admissible as exceptions to the hearsay rule. Consequently, the proponent will have to establish that the records are expert testimony, or otherwise meet the objection.