See also: BANK RECORDS; BUSINESS RECORDS; ELECTRONIC FUND TRANSFERS; E-MAIL; MACHINES; OFFICIAL RECORDS AND REPORTS; PUBLICATIONS–Commercial Publications; SPREADSHEETS
TELEPHONE CONVERSATIONS–Telephone Records.

1.  Computer Records As Hearsay

While the "statements" of machines, including computers, are not explicitly governed by the hearsay rule (see MACHINES), they generally are based upon hearsay recorded by the persons who input the original data.{footnote}Cf. People v. Holowko, 486 N.E.2d 877 (Ill. 1985) (computer "tracer" record of phone numbers for incoming calls not hearsay because no statement of a person involved); People v. Houston, 679 N.E.2d 1244 (Ill. Ct. App. 1997) (“‘Computer-generated’ records are admissible under a lesser standard [than those incorporating human input]. All that must be shown is that the recording device was accurate and operating properly when the evidence was generated.”); State v. Armstead, 432 So.2d 837, 839-41 (La. 1983) (computerized records of phone traces were not hearsay); Burleson v. State, 802 S.W.2d 429 (Tex. App. 1991):

A business rule exception did not have to be established because the type of computer-generated evidence in question (the display of the number of records in the payroll commission file) was not hearsay. It was not a verbal or nonverbal out-of-court statement made by a person. Tex. R. Crim. Evid. 801. Rather, it was tangible, albeit fleeting, evidence which was generated by the computer itself as part of the computer’s internal system designed to monitor and describe the status of the system.{/footnote}  Computer records will generally not be admitted, therefore, unless an exception applies.{footnote}Aguimatang v. California State Lottery, 286 Cal. Rptr. 57, 72 (Cal. App. 1991).
See also HEARSAY–Double or Multiple Hearsay.{/footnote} Where, however, a computer record is not offered for the truth of the maaters asserted therein, it is not hearsay.{footnote}United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied, 439 U.S. 870 (1978) (records not offered to prove amounts shown on statements were correct; testimony established that false information provided to the computer).{/footnote}

2.  The Business Records Exception

Computer data compilations or print-outs, thought hearsay, are often held admissible under the hearsay exception for business records.{footnote}United States v. Goodchild, 25 F.3d 55, 61-62 (1st Cir. 1994); Professional Mobile Home Brokers, Inc. v. Security Pacific Hous. Serv., No. 94-1910, 1995 WL 255937 (4th Cir. May 3, 1995); United States v. Young Bros., Inc., 728 F.2d 682, 694 (5th Cir. 1984); United States v. Russo, 480 F.2d 1228 (6th Cir. 1973); United States v. Croft, 750 F.2d 1354, 1364 (7th Cir. 1984); United States v. Scholle, 553 F.2d 1109, 1124-25 (8th Cir. 1977); U.S. v. Linn, 880 F.2d 209, 216 (9th Cir. 1989); United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985); United States v, Cestnik, 36 F.3d 904, 909 (10th Cir. 1994), cert. denied, 115 S.Ct. 1156 (1995); United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985).
Aguimatang v. California State Lottery, 286 Cal. Rptr. 57, 72 (Cal. App. 1991); Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984); American Oil Co. v. Valenti, 426 A.2d 305 (Conn. 1979); Specialty Linings v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. Ct. App. 1988) (applying Fla. Stat. § 90.803(6) (1987)); Grand Liquor Co. v. Department of Revenue, 367 N.E.2d 1238 (Ill. 1977); People Gas Light & Coke v. Barrett, 454 N.E.2d 713 (Ill. Ct. App. 1983) (computer record of meter readings admissible); Department of Mental Health v. Beil, 357 N.E.2d 875 (Ill. Ct. App. 1976) (computer record of hospital admission dates excluded); People v. Miller, 150 A.D.2d 910; 541 N.Y.S.2d 257 (N.Y. App. Div. 1989); State ex rel. Elec. Supply Co., Inc. v. Kitchens Const., Inc., 750 P.2d 114 (N.M. 1988); Westinghouse Elec. Supply Co., Inc. v. B.L. Allen, Inc., 413 A.2d 122 (Vt. 1980); Annotation, 7 ALR 4th 8, 15 (1981).

See also Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994) (dicta).{/footnote}   The foundation requirements are the same as for any other form of business record.{footnote}United States v. Vela, 673 F.2d 86, 89-90 (5th Cir. 1982); Rosenberg v. Collins, 624 F.2d 659 (5th Cir. 1980); United States v. Croft, 750 F.2d 1354, 1364 (7th Cir. 1984); United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988) (ledgers, inventory and payroll records); State Office Sys., Inc. v. Olievetti Corp., 762 F.2d 843, 845 (10th Cir. 1985); Pacific Serv. Stations Co. v. Mobil Oil Corp., 689 F.2d 1055, 1061 (Temp. Emer. Ct. App. 1982).
But see Grand Liquor Co. v. Department of Revenue, 367 N.E.2d 1238 (Ill. 1977):

Tangible printouts of "computer-stored" data are admissible under the business records exception to the hearsay rule if (1) the electronic computing equipment is recognized as standard, (2) the input is entered in the regular course of business reasonably close in time to the happening of the event recorded, and (3) the foundation testimony establishes that the sources of information, method and time of preparation indicate its trustworthiness and justify its admission.{/footnote}  Under the federal rules and its state counterparts, this means:

· the record must have been created at or near the time of the acts or events recorded;
· the record must have been created by, or from information transmitted by, someone with personal knowledge of the facts; and
· it must also have been a regular practive of the business to make and preserve records of that type.{footnote} FRE 803(6). 
See BUSINESS RECORDS.{/footnote}

The foundation must be laid by a custodian of records or other qualified witness.  Records fulfilling these requirements will be admitted unless there is some indication that they are not trustworthy.{footnote}FRE 803(6). 
See BUSINESS RECORDS.{/footnote}

2(a).  "At or Near the Time" 

Computer records have been held admissible even where the computer entries were made long after the underlying data was compiled in paper form, so long as the original data was compiled in a timely fashion.{footnote}United States v. Sanders, 749 F.2d 195, 197-99 (5th Cir. 1984) (computer records of data compiled from Medicaid claim forms); United States v. Catabran, 836 F.2d 453, 456-57 (9th Cir. 1988).{/footnote}

2(b).  "Regular Course of Business" 

To be admissible under this exception, the underlying date on which the computer record is based must have been created in the regular course of business.{footnote}Needham v. New Jersey Ins. Underwriting Assn, 553 A.2d 821 (N.J. Super. 1989) (“trial court erred in admitting into evidence a computer printout of plaintiff’s renovation costs under the business record exception to the hearsay rule, Evid.R. 63(13), because the entries were not supplied to plaintiff or made in the ordinary course of business.”); People v. Weinberg, 183 A.D.2d 932; 586 N.Y.S.2d 132 (1992) (computer medical billing records admissible).{/footnote}  Printouts are admissible even where they were created long after the events or transactions recorded,{footnote}Aguimatang v. California State Lottery, 286 Cal. Rptr. 57, 72 (Cal. App. 1991); State ex rel. Elec. Supply Co., Inc. v. Kitchens Const., Inc., 750 P.2d 114 (N.M. 1988); Westinghouse Elec. Supply Co., Inc. v. B.L. Allen, Inc., 413 A.2d 122 (Vt. 1980);{/footnote} and solely for the purpose of litigation.{footnote}United States v. Loney, 959 F.2d 1332, 1340-41 (5th Cir. 1992); United States v. Hutson, 821 F.2d 1015, 1019-20 (5th Cir. 1987); United States v. Sanders, 749 F.2d 195, 197-99 (5th Cir. 1984); United States v. Briscoe, 896 F.2d 1476, 1494 n. 13 (7th Cir.), cert. denied, 498 U.S. 863 (1990); United States v. Hernandez, 913 F.2d 1506, 1512-13 (10th Cir. 1990), cert. denied, 499 U.S. 908 (1991).
But see People v. Casey, 587 N.E.2d 511, 514-15 (Ill. Ct. App. 1992) ("But if the retrieval process is designed from a litigant’s various sources of information and purposeful selection that cannot be independently reviewed by the defense," then the printout may be inadmissible).{/footnote}

2(c).  Custodian or Other Qualified Witness

Persons qualified to lay a foundation for the admission of computer records include the business’ computer programmer.{footnote}S. Rep. No. 1277, 93d Cong., 2d Sess. (1974), reprinted in  1974 U.S.C.C.A.N. 7051, 7063-64 (qualifying witness may be "company’s computer programmer or one who has knowlege of the particular record system."){/footnote}  Testimony from a programmer is not required, however,{footnote}United States v. Young Bros., Inc., 728 F.2d 682, 693-94 (5th Cir.), cert. denied, 469 U.S. 881 (1984); United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985).{/footnote} nor is testimony from the person who created the record.{footnote}United States v. Fendley, 522 F.2d 181, 185 (5th Cir. 1975).
People v. Turner, 599 N.E.2d 104 (Ill. Ct. App. 1992).{/footnote}  The witness may be anyone who has knowledge of the record system.{footnote}S. Rep. No. 1277, 93d Cong., 2d Sess. (1974), reprinted in  1974 U.S.C.C.A.N. 7051, 7063-64 (qualifying witness may be "company’s computer programmer or one who has knowlege of the particular record system."); United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985).
People v. Lugashi, 205 Cal. App. 3d 632, 640, 252 Cal. Rptr. 434 (1988); Specialty Linings v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. Ct. App. 1988) (applying Fla. Stat. § 90.803(6) (1987)); People v. Turner, 599 N.E.2d 104 (Ill. Ct. App. 1992).{/footnote} 

2(d).  Trustworthiness of Computer Hardware and Software

Possible inaccuracies generally go to the weight, not the admissibility of computerized business records.{footnote}United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988).

But see Peritz, Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence, 80 NW. U. L. REV. 956 (1986) (arguing that a greater foundation should be laid for computerized records, by a testifying witness as to system reliability).{/footnote}  Some courts hold that the party against whom the evidence is offered must be given an opportunity to inquire into the accuracy of the computer and its input procedures.{footnote}United States v. Liebert, 519 F.2d 542, 547 (3d Cir. 1975) (citing United States v. DeGeorgia, 420 F.2d 889, 893 n. 11 (9th Cir. 1969); United States v. Croft, 750 F.2d 1354, 1365 n. 7 (7th Cir. 1984); United States v. Scholle, 553 F.2d 1109, 1124-25 (8th Cir. 1977). 

Check: United States v. Fendley, 522 F.2d 181, 187 (5th Cir. 1975)
             United States v. Russo, 480 F.2d 1228, 1241 (6th Cir. 1973);
             United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978).

Check Grand Liquor v. Dept. of Revenue, 67 Ill. 2d 195, 367 N.E.2d 1238 (1977) (sources of error in computer records are in the input of information, the design of the computer program, and the mechanical operation of the computer).{/footnote}  The degree of scrutiny the court will give the computer and its software depends upon the extent to which the computer is merely retrieving data, as opposed to performing complex operations with it.{footnote}People v. Mormon, 422 N.E.2d 1065, 1072-1073 (Ill. Ct. App. 1981).{/footnote}  On the other hand, a trial court’s failure to grant access to the underlying computer program responsible for the records has been upheld where the program was so simple as to be "of little if any importance."{footnote}United States v. Croft, 750 F.2d 1354, 1365 n. 7 (7th Cir. 1984).
CHECK United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978).{/footnote}

The proponent of the evidence need not establish the existence of an "air-tight security system" protecting the computer data,{footnote}United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985) (identifying numbers used to access system not kept confidential).{/footnote} and evidence that tampering is possible generally goes to the weight, rather than the admissibility of computer records.{footnote}United States v. Scholle, 553 F.2d 1109, 1125 (8th Cir.), cert. denied, 434 U.S. 940 (1977).{/footnote}

2(e).  Appeal

The trial court has broad discretion in determining the admissibility of computer evidence as a business record.{footnote}People v. Lugashi, 205 Cal. App. 3d 632, 640, 252 Cal. Rptr. 434 (1988); Specialty Linings v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. Ct. App. 1988) (applying Fla. Stat. § 90.803(6) (1987)).{/footnote}  The court’s ruling will only be reversed where there has been an abuse of discretion.{footnote}People v. Lugashi, 205 Cal. App. 3d 632, 640, 252 Cal. Rptr. 434 (1988).{/footnote}  See also APPEAL.

3.  Printouts and the Best Evidence Rule

 
Print-outs are considered "originals" of the computer data at issue.{footnote}FRE 1001(3).
Aguimatang v. California State Lottery, 286 Cal. Rptr. 57, 72 (Cal. App. 1991) (citing Cal. Evid. Code § 255).
See also Insurance Co. of North America v. Cooke, 624 So. 2d 252, 256 (Fla. 1993) (computer printout admissible over “best evidence” objection to show mailing of notice to insured, because rule only applies where the proponent is seeking to establish the content of a writing).{/footnote}  Under Claifornia law, they are presumed to be an accurate representation of the date contained in the computer.{footnote}Cal. Evid. Code § 1500.5; Aguimatang v. California State Lottery, 286 Cal. Rptr. 57, 72 (Cal. App. 1991).{/footnote}

Bibliography

McCormick, § 314 at 733.
Brockett, Evidence and Trial Advocacy: The Erosion of the Hearsay Objection to Computer Generated Evidence, 26 Crim. L. Bull. 357 (1990)
Johnson, A Guide for the Proponent and Opponent of Computer-Based Evidence, 1 Computer L.J. 667 (1979).
Peritz, Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence, 80 N.W. U. L. Rev. 956 (1986).
Annotation, _________, 7 A.L.R. 4th 8 (1981).