Hearsay

Definition

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted in the statement. If the statement is not offered to prove the truth of what it says, then it is not hearsay.

For example, in a prosecution for credit fraud, computer printouts related to the defendant’s accounts, kept by the collections department of the credit card company, would meet the core definition of hearsay because they would be offered to prove the truth of their contents. On the other hand, in a prosecution for online solicitation of a minor, the reply e-mails from the victim, if introduced simply to show con­tact between the defendant and victim rather than for the truth of their con­tents, would not meet the core definition of hearsay. They would be relevant for the fact that the defendant received them, not for what they say.

Exceptions

Even if the statement falls within the core definition of hearsay, it may nevertheless be admissible as an exception to the hearsay rule. The Federal Rules of Evidence specify several categories of statements that, although offered to prove the truth of the matter asserted, are nevertheless deemed not to be hearsay.

1. A common exemption for present purposes is the category of admissions.
2. A common exception concerning digital evidence is the business records exception.

Additional exceptions are:

• Photographic copies exception
• Voluminous writings exception

Computer-generated substantive evidence

Whether computer-generated evidence prepared for trial raises hearsay issues depends on the purpose for which it is introduced and on the nature of the evi­dence. A computer exhibit used simply to illustrate a witness’s testimony — such as the computer image of a building floor plan or a computer diagram of a handgun — is not offered to prove the truth of the matter asserted, or to prove anything. It is offered only to illustrate the witness’s testimony. As such, it is not hearsay. A digital photograph of a crime scene, when offered as substantive proof, is not a “state­ment” but rather the direct output of a machine.

Re-creations or simulations, on the other hand, may go beyond the testimony of the witness and thus constitute substantive evidence apart from a live witness’s testimony. Hearsay problems may arise if the simulation is based on out-of-court statements, including input data and assumptions that underlie the simulation.

A record that is generated by a computer program is not properly regarded as hearsay. This is because it does not meet the definition of a “statement” under Fed.R.Evid. 801(a); it is neither “an oral or written assertion” nor “nonverbal conduct of a person if it is intended as an assertion.” Further, Fed.R.Evid. 801(b) defines a “declarant” as “a person who makes a statement.” Some computer-generated records may have the appearance of a statement by a person, such as the “You’ve got mail” prompt that signals the presence of unopened e-mail, but these are actually only the automatic output of the computer program.

The rationale for the hearsay rule — the preference for testing the trustworthiness of human assertions through in-court testimony subject to cross-examination and obser­vation of witness demeanor by the trier of fact — does not apply to evidence generated directly by a nonhuman source. Thus, courts have long recognized that evidence such as the output of a Breathalyzer machine, a radar speed detection device, and a blood­ hound’s response to a scent raise authentication issues but are not hearsay.

Some courts also have recognized that computer-generated records are not hearsay. Jurisdictions that fail to recognize this distinction have nevertheless tended to admit such evidence if an otherwise proper foundation has been laid under the business records exception. For example, a computer-generated record that an ATM safe had been opened was held admissible under the business records exception upon testimo­ny by the records custodian, even though the custodian was unfamiliar with the func­tioning and accuracy of the program that generated the record as required for authentication purposes under Fed.R.Evid. 901(b)(9).

Exceptions

If a computer-generated exhibit is deemed hearsay, its proponent will either have to find an applicable exception or some other way around the hearsay rule.

Several exceptions might apply to the input data. Measurements, for example, might be regarded as “present sense impressions” under Fed.R.Evid. 803(1); other data might be taken from business records that qualify under Fed.R.Evid. 803(6) or public records that qualify under Fed.R.Evid. 803(8). (Public records, however, are subject to important limitations in criminal proceedings.) Even if the input data qualify under one of those exceptions, however, the hearsay rule may still apply to the operation of the program and the output function.

The proponent of the exhibit might also try to invoke the so-called “residual excep­tion” under Fed.R.Evid. 807, which is subject to several limitations. The proponent must show that the “statement” is evidence of a material fact and is more probative of that fact than any other evidence the proponent could offer through reasonable efforts, and that admission of the evidence serves the purposes of the rules of evi­dence and the interests of justice. Fed.R.Evid. 807 is also subject to a notice requirement.

The proponent of a computer animation or simulation prepared for trial might seek admission under Fed.R.Evid. 703 (bases of opinion testimony by experts). Note, however, that the amendments enacted in 2000 to FRE 703 restrict the admissibility of oth­erwise inadmissible information relied on by the expert. Such evidence now is inad­missible unless the trial court finds that its “probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs [its] prejudicial effect.”

Computer-stored substantive evidence

If the computer-stored record contains statements made by a person and is offered to prove the truth of the matter asserted in a statement, then the prosecution must consider the hearsay rule. As mentioned above, if the statement qualifies as an admission by a party-opponent, then the Fed. R. Evid. 801(d)(2) takes it out of the definition of hearsay and no exception is necessary. The hearsay rule also does not apply if the statement is not offered to prove the truth of the matter asserted.

The most common hearsay exception for computer-stored records is the business records exception (Fed. R. Evid. 803(6)). To establish the foundation for this exception, the prose­cution should be prepared to show that the source of information or the method or cir­cumstances of preparation are trustworthy. This may be accomplished by showing that:

a. The computer equipment (hardware and software) on which the record was stored is recognized as standard in the field or reliable.

b. The data were entered in the regular course of business at or reasonably near the time of the occurrence of the event recorded.

c. The sources on which the record was based, as well as the method and time of preparation, indicate the record is trustworthy and its admission is justified.

This foundation may be established through the testimony of the custodian of the record or by a person who is familiar with the methods by which it was prepared, even if that person does not have personal knowledge of the underlying facts contained in the record and is not a computer expert familiar with the technical aspects of the software or hardware. In support of establishing trustworthiness, the proponent might show:

• Company reliance on the data.
• Protection of the accuracy of data entry.
• Prevention of loss or alteration of the data while in storage.
• Provision for integrity of data output.

There is considerable overlap between the foundation required for authentication and the foundation required to establish the availability of the business records exception to the hearsay rule. Allegations of some inaccuracies in the printouts of the computer records or in the records themselves will not necessarily defeat admissibility, provided an adequate foundation has been established. As is the case with paper business records, the presence of some inaccuracies goes to the weight rather than the admissibility of the records.

Note also that, although records that are prepared solely for purposes of litigation may be challenged as untrustworthy, this limitation applies to the underlying data and not to the printout of records. Thus, preparation of a printout for purposes of litigation does not render it untrustworthy if the underlying data were entered and stored in the normal course of business.

For example, a defendant was prosecuted for concealing assets during a bankruptcy proceeding and destroying or concealing the bankrupt company’s records. The trial court properly admitted computer printouts of the company’s general ledgers, which contained inventory, payroll, and other accounting data entered by bookkeep­ers, after the prosecution called one of the bookkeepers to testify that the book­keepers entered the data on a current basis, the printout accurately reflected the data, the printout was produced routinely each month, the data were regularly audited for accuracy, and the systems used were standard in the industry.

Like any other record, computer-stored records can involve multiple levels of hearsay. The act of data entry is itself an out-of-court “statement” under Fed. R. Evid. 801(a), but the result is usually the records kept in the regular course of business under Fed. R. Evid. 803(6) as noted above. The underlying data entered may also contain hearsay “statements,” which must qualify in turn for a hearsay exception or exemption.