Objecting to computer-generated evidence
Objecting to computer-generated evidence
In many preliminary hearings, the prosecution will attempt to introduce evidence against the defendant consisting of printouts or other documents produced from data in a computer.FN15 The first opportunity for the defense to object to the introduction of this evidence will usually be at the preliminary hearing.
There are four grounds that counsel is most likely to use in objecting to computer-generated evidence: hearsay, best evidence rule, lack of authentication, and lack of foundation.FN16
Before raising any objection, however, counsel may want to conduct a voir dire examination of the witness being used by the prosecution to establish the foundation for the admissibility of the records in question.FN17
Frequently, the purpose of a voir dire examination is to elicit the lack of opportunity the witness has had to establish the needed foundation, or to explicitly contradict one of the elements needed to establish an adequate foundation. If, for example, the prosecution is attempting to establish that a record is admissible because it is a business record, getting testimony that it was not made in the ordinary course of business is quite valuable to the defense effort.
After the preliminary hearing, counsel will often want to explore the possibility of a discovery motion to gather further information about the method in which computer-generated documents were created, and about the computer systems responsible for their creation.FN18
Another purpose served by the voir dire examination, or by subsequent cross-examination of the witness, is to elicit information which will facilitate the discovery motion. These questions include a full description of the manner in which the records in question are produced, maintained, edited, updated, archived, and used.FN19 Where there is a significant defect in the prosecution's foundation, there are situations in which discretion is advised, such that the prosecution does not remedy the weaknesses prior to trial.