Tasks with Directions

The textbook (pages 41 to 46) and the lecture discuss hearsay evidence. Recall the definition of hearsay evidence found in the Federal Rules of Evidence (FRE), Rule 801:

“Hearsay” means:

(1) a statement that the declarant does not make while testifying at the current trial or hearing (i.e., out of court); and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

The Rule Against Hearsay (FRE Rule 802) provides that hearsay evidence is generally not admissible in court, unless an exception applies. Exceptions can be found in FRE 803 and 804.

Courts have struggled with digital evidence and the hearsay rule. Judges have often assumed that all computer records contain hearsay. A more nuanced view suggests that in fact only a portion of computer records contain hearsay. Courts have tried to resolve issues concerning digital hearsay by distinguishing between computer-generated data and computer-stored data. Computer-generated data is data created in the normal course of the operations of a computer (or other digital device) that is not “touched” by humans. The argument is that such a record cannot contain hearsay because there was no human involvement and therefore, no “assertion by a person.” Examples of computer-generated data include logs of phones calls that are made and received, records of ATM transactions, and event logs (more on them in Module 8).  Computer-stored data, on the other, represents data that is “touched” by humans even though stored on a computer (or another digital device). In other words, a human being inputs all, or a part, of the data. Word documents, PDFs, spreadsheets, the body of e-mails, text messages are all examples of computer-stored data.

The important difference is that a digital record that contains only computer-generated data cannot contain hearsay. In such cases, the authenticity of the record must still be established, but no hearsay exception must apply for the records to be admissible. Admission of computer-stored data requires that a hearsay exception be established – for example, that the records are Records of a Regularly Conducted Activity. The authenticity of the record must still be established as well.

Now, consider the following situation.

A lone gunman robbed the Fifth Third Bank in Indianapolis one morning. Holding a handkerchief over part of his nose and mouth, the robber pointed a long-barreled, dull-finish revolver at one of the tellers and demanded that she place all of the money at her teller station into a bag. She did not have enough. The robber spotted the bank’s office manager, directed him over to the teller line, and ordered him to continue filling the bag from another station. Eventually, the cash from an automatic teller machine in the rear of the bank was also emptied into his sack. The robber then prepared his getaway. Taking the manager out to the parking lot, the robber told him to start his car and climb into the passenger seat. They drove a short distance, and the robber ordered him out of the car. The car was later recovered a short distance away.

Seven weeks later, a similar robbery occurred at the Shelby Federal Savings Bank in Indianapolis. A gunman entered the bank and walked toward one of the tellers, placing a handkerchief over his nose and mouth when he arrived at the window. He pointed a long-barreled revolver at the teller and ordered her to get a bag and fill it with money. This time, the branch manager arrived with a trashcan liner and began stuffing cash inside. When the teller stations ran out, the robber sent her to the vault to get more. The branch manager had recently bagged fifteen hundred dollars in one-dollar bills, and she dropped these bills into his bag. The robber then approached an elderly bank customer, Homer A. Doriot, put the bag in his hands, and led him out to the parking lot. Outside, the robber took Doriot’s keys, put him in the passenger seat, and drove some distance before ordering Doriot out. The car was found the same day and returned to its owner.

While driving home on the afternoon of the robbery, Homer Doriot noticed a pair of eyeglasses that he did not recognize on the front seat of his car. Doriot contacted the bank manager, who notified the FBI. The next day, Special Agent Roth of the FBI retrieved the glasses from Doriot’s car. That started an impressive performance of high-tech sleuthing. Roth delivered the glasses to Edward H. Schmidt & Sons, an Indianapolis company in the business of manufacturing custom eyeglasses. Mark Schmidt, its president, had the eyeglasses electronically “neutralized,” or analyzed, by a machine that reads each lens’s prescription by means of refracted light. Schmidt gave Roth a copy of the printout with the prescription of the glasses. Schmidt also determined that the glasses had “Geoffrey Beene” designer frames, roughly eight months to a year old. Armed with this information, Roth went looking for a retailer that sold Geoffrey Beene eyeglasses. He contacted City Optical Company, a corporation that operates “Dr. Tavel Premium Optical” and “Dr. Tavel Vision Value” eyeglasses chains in Indianapolis. Their records turned up a total of seventeen sales of the particular type of frames found in Doriot’s car, only one of which matched the prescription Schmidt & Sons analyzed. The name of its purchaser was Charles William Blackburn. Within a few days of the second robbery, almost as if he wanted to confirm the FBI’s theory, Blackburn himself walked into a Tavel retail outlet, looking for a replacement pair of eyeglasses. The FBI arrested Blackburn and charged him with two counts of bank robbery and two counts of use of a firearm during the commission of a crime of violence.

At trial, Blackburn argued that the printout of the electronic neutralization performed by Edward H. Schmidt & Sons of the glasses was hearsay and should not be admitted as evidence.

Exercise:

  1. You are the judge in Blackburn’s trial. Do you agree with Blackburn that the computer printout of the prescription is hearsay or not? In your first post to share with classmates, give your ruling (i.e., admit the prescription or exclude the prescription) and provide the reasoning for your decision (hint: in your opinion is the prescription computer-generated data or computer-stored data – why?).

Based solely on the information presented, I would say the evidence is not hearsay, contrary to Mr. Blackburn’s allegations. The evidence, while circumstantial, is computer-generated and therefore does not need a hearsay exemption and is admissible. The prescription was created by a machine analyzing the glasses and generating a report. This is considered computer-generated data, as human intervention was not needed. The report was created in real-time through a computer data compilation, and it was not stored through the Edward H. Schmidt & Sons company. Overall, while the evidence has not been examined or authenticated, it is legally admissible in court and not considered hearsay.

Resources:

Maras, Marie-Helen. Computer Forensics, 2nd Edition. Jones & Bartlett Learning, 2014. ISBN-13: 9781449692223

Chapter 2 An Introduction to Computer Forensics Investigations and Electronic Evidence [PowerPoint slides]. CYSE/CRJS 404, Old Dominion University.