Digital Evidence - Hearsay

Hearsay

Very often an opponent to digital evidence will object to its admission as hearsay. Like documentary evidence, not all digital evidence is hearsay.

First, there is some digital evidence which is not hearsay at all. Hearsay is a "statement, other than one made by the declarant while testifying at the trial… offered in evidence to prove the truth of the matter asserted." A declarant is a person. Therefore, courts have held that digital evidence is not hearsay when it is "the by-product of a machine operation which uses for its input ‘statements’ entered into the machine" and was "was generated solely by the electrical and mechanical operations of the computer and telephone equipment." State v. Armstead, 432 So.2d 837, 839 (La. 1983).

Moreover, where the evidence is not offered to prove the truth of the statements, digital evidence is not hearsay. This is the case, for example, with logs of chatroom conversations. While a chatroom log may contain many out of court statements, which would otherwise be hearsay, they may be used for other purposes, including as a party admission. US v. Simpson, 152 F.3s 1241 (10th Cir. 1998).

Second, hearsay recognizes a number of exceptions. Most frequently, proponents of digital evidence seek admission under the business records exception. This perhaps is because the definition of business records includes a "data compilation." FRE 803(6). However, obviously not every piece of digital evidence is a business record. Such reliance on the business records exception has had bad results for its proponents. In Monotype Corp. PLC v. International Typeface Corp, the plaintiffs relied on the business records exception to attempt to admit two e-mails as evidence that the defendants had infringed their copyright only to have it excluded by the court. 43 F.3d 443 (9th Cir. 1994). The court noted that the e-mail was not created "in the regular course of business."

Other proponents have had success with the public records exception, excited utterance, Present sense impression, and the FRE 807—the catch-all. Where digital evidence does not meet one of the other exceptions but has "equivalent circumstantial guarantees of trustworthiness" that hearsay seeks to protect against, a court may apply the catch-all.