Xref: utzoo news.admin:7869 misc.legal:12582 Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!uunet!samsung!think!mintaka!snorkelwacker!apple!genbank!bionet!ig!mcb From: mcb@presto.ig.com (Michael C. Berch) Newsgroups: news.admin,misc.legal Subject: Re: Evidence from computers Message-ID: Date: 2 Dec 89 07:42:05 GMT References: <3990@sbcs.sunysb.edu> <628@ncis.tis.llnl.gov> <4052@sbcs.sunysb.edu> Followup-To: misc.legal Organization: IntelliGenetics, Inc., Mountain View CA USA Lines: 79 In <4052@sbcs.sunysb.edu> brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes: > In <628@ncis.tis.llnl.gov> mcb@ncis.tis.llnl.gov (Michael C. Berch) writes: > > Huh? I don't think there is any court in the country that *doesn't* > > accept evidence from computers. > > I've seen several cases where printouts were not accepted in court. For > example, if a money machine messes up, you have absolutely no recourse. > The receipts are worthless. (This may not be true in states other than > New York. And I'm not a lawyer.) I think we are having a semantic disagreement here. By "not accepted in court" I assume (from the next sentence) that Mr. Berstein means, "was not sufficient to prove the truth of the assertions contained on the printout" as opposed to "was not considered admissible (that is, material, relevant, and competent) evidence". There is a large difference between these two assertions. Computer printouts and other tangible media are competent evidence, but they are often weak evidence as to the substance of the matters contained in them. This is true for many other types of evidence, such as unsigned writings and the like. The ATM receipt mentioned above is a good example of this "weak" evidence; as others have pointed out, an ATM receipt for a deposit is not particularly good evidence of the fact of a deposit, simply because the method used to print them does not include verification. A bank's evidence that the deposit envelope was empty when opened by the (usually) two required employees is much stronger evidence than a printed receipt. > > Considering that the vast majority of > > accounting data in the U.S. is kept on computers, inability to accept > > computer data as evidence would, shall we say, throw quite a cramp > > into business litigation. > > Of course. A business happens to store information on a computer; it > prints it out, looks at the result, says happily ``yes, these are our > accounting records,'' and submits the evidence. Here the evidence is > the printout; the information in the evidence has nothing to do with > the computer. > > In other words: The business is saying ``these sheets of paper contain > our records.'' What does that have to do with computers? Uhhh, no more and no less than any other printout (or any other business records)... If you have a custodian of records testify, in an offer of proof, you can authenticate the records as having come from a particular system on a particular date. (I have done this in court; it's extremely common.) The printouts then have a much greater evidentiary value than "random documents". But this is not limited to accounting records. > In contrast, New York courts consider money machine transactions to > have a lot to do with computers. Say I submit a receipt as evidence; > what do I say about it? ``This receipt details my interaction with > the money machine.'' The computer here is not just a medium; it's the > actual entity, the machine, that the evidence has to do with. Not because the evidence "has a lot to do with computers", but simply because the receipt has little evidentiary value. > > Computer data -- reduced to printouts, > > graphics, or other tangible form -- is as admissible as any other kind > > of documentary evidence, so long as it is properly identified and > > authenticated via an offer of proof, *just like any other documentary > > exhibit*. > > That's the tricky part. The courts (quite sensibly) consider it very > difficult to authenticate evidence *that has to do with computers*. I do not believe this to be true in practice. There are certainly continuing legal education seminars on the subject -- I get announcements in the mail -- but this is true of many types of litigation techniques and methods of presenting evidence. (There are seminars on "How to Use X-Rays and Imaging in Jury Trials" and so forth.) Courts are not nearly as bewildered by computer-derived evidence as many people think. -- Michael C. Berch (new address!) mcb@presto.ig.com / ames!bionet!mcb