Motion to exclude computer-generated evidence
Motion to exclude computer-generated evidence
While counsel can wait to address the admissibility of computerized evidence at trial, it is a better practice to raise and resolve this issue during pretrial proceedings; counsel does so by motion to have the court determine the admissibility of contested documents by pretrial order.FN95 However, not all issues will be resolved pre-trial, and counsel should be ready to question the foundation of any documents offered by the prosecution, and if they are admitted, to impeach their credibility.
There are two primary arguments that defense counsel can make in the argument against admissibility of computer-generated documents:
- the best evidence rule, which generally requires original documents, rather than copies, to be used as evidence; and
- the hearsay rule, which generally requires that evidence consist of "statements" that are made by a witness testifying from personal knowledge in court.FN96
Often the argument resisting admissibility of computer-generated evidence is difficult because most jurisdictions have recognized the widespread use of computers by business and government. Nonetheless, many judges are still suspicious of computers and will entertain arguments based on their unreliability.
This reservation concerning computer-generated evidence was aptly expressed by United States Circuit Court Judge Van Graafeiland, in a dissent, when he or she voiced a view held by many judges on and off the bench:
As one of the many who have received computerized bills and dunning letters for bills long since paid, I am not prepared to accept the product of a computer as the equivalent of the holy writ.FN97
Another judicial view expressed a more productive route for counsel to pursue in resisting the admission of such documents:
The computer is a marvelous device that can perform countless tasks at high speed and low cost, but it must be used with care. This is because it can also make errors at high speed. Those who use computers for record and accounting purposes, including the government, are accordingly obliged to operate them with suitable controls to safeguard the reliability and accuracy of the information.FN98
Records produced by a computer have been offered to prove a number of significant issues in computer crime prosecutions. These have included misappropriation of bank funds by a fiduciary,FN99 proof of false claims as part of an insurance fraud,FN1 sham insurance policies,FN2 theft by use of credit cards,FN3 communications between co-conspirators,FN4 and alibi evidence.FN5
Cumulative Supplement
Cases:
Printouts of operating system audit files: Computer printouts which showed times at which defendant accessed computer files were not so unreliable so as to deny his constitutional right to a fair trial at trial for knowingly accessing and taking data from a computer system; there was substantial testimony about how computer files could be accessed and whether access times could be manipulated. West's Ann.Cal.Penal Code § 502(c)(2). People v. Hawkins, 98 Cal. App. 4th 1428, 99 Cal. App. 4th 1333a, 121 Cal. Rptr. 2d 627 (6th Dist. 2002), as modified on denial of reh'g, (July 2, 2002) and review denied, (Aug. 28, 2002); West's Key Number Digest, Criminal Law 1169.1(10).