“Electronic Fingerprints”: Doing Away with the Conception of Computer-Generated Records as Hearsay

One night, in the hours just before daybreak, the computer servers at Acme Corporation’s headquarters quietly hum in the silence of the office’s darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme’s IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe to be the hacker. During the trial, several witnesses testify about the attack and its resulting damage. The only piece missing is the hacker’s identity. In order to prove this, the prosecution wishes to introduce the mainframe’s records of the attack, which document both the source of the invasion and the signature of the computer that conducted the entire event. A cursory check by computer specialists matched these records with the accused hacker’s personal computer. The prosecutors lay sufficient foundation to authenticate the records and then move to have them admitted into evidence. “Objection!” states the defense counsel. “On what grounds?” replies the judge. “Hearsay, your Honor. The computer records the prosecution is attempting to introduce do not satisfy the business records exception under Federal Rule of Evidence 803(6). They were created in response to an attack, and were not maintained in the ordinary course of business. Consequently, they cannot be admitted under the Rules of Evidence and must be deemed inadmissible.” The judge directs his attention to the prosecution. “Counsel, are there any other exceptions these records fall under?” “No, your Honor.” “Objection sustained.” This result may seem inequitable, but it is entirely possible given the current majority view on the nature of computer-generated records. This Note argues that the minority conception is the proper approach to judging computer-generated records’ admissibility. The minority approach recognizes the true nature of this type of record and is in accordance with the overall purposes of the Federal Rules of Evidence: accuracy and truth in the fact-finding process. Part I demonstrates that a distinction exists between computer-stored and computer-generated records. A majority of courts largely ignore this distinction despite contravening precedent from several state courts. Part II then explains why computer-generated records as opposed to computer-stored records-should not be considered hearsay because these records do not fit into the definition of hearsay and they do not present the normal dangers associated with such statements. Part III advocates a test by which judges can distinguish between these two types of records. This Part also suggests ways in which federal and state judiciaries can reform faulty precedent and avoid the likely obstacles that will arise in such an endeavor.