A Guideline for Federal Records Managers or Custodians

PREFACE

...[N)o court could fail to notice the extent to which business today depends on computers for a myriad of functions. Perhaps the greatest utility of a computer ... is its ability to store large quantities of information which may be quickly retrieved on a selective basis. Assuming that properly functioning computer equipment is used, once the reliability and trustworthiness of the information put into the computer has been established, the computer printouts should be received as evidence of the transactions covered by the input. - Harris v. Smith, 372 F.2d 806 (8th Cir.1967).

Recognizing that electronically filed Federal records are subject to being offered as evidence in litigation, this guideline has been prepared to familiarize Federal records managers or custodians with the rules of evidence as they apply to such records. This familiarization should assist in establishment of appropriate procedures in creating and maintaining electronically filed records that will assure their admissibility in court proceedings and enhance their probative value as reliable and trustworthy representations of their purported contents.

CONTENTS

I. INTRODUCTION

II. THE BEST EVIDENCE RULE, HEARSAY AND AUTHENTICATION

  1. The Best Evidence Rule
  2. Hearsay
  3. Authentication

III. LAYING A PROPER FOUNDATION

IV. CONCLUSION

I. INTRODUCTION

Chapter 31 of United States Code Title 44 (Records Management by Federal Agencies) requires that every Federal agency "establish and maintain an active, continuing program for the economical and efficient management of the records of the agency," and provide for "effective controls over the creation and maintenance of records in the conduct of current agency business." 44 U.S.C. S 3102. This statutory language appears to encourage use of information processing technology such as computers and micrographics as records management tools, including the filing of Federal records electronically. In any case, since electronically filed records are by their nature machine readable, they fall within the statutory definition of Federal records. 1/

Because electronically filed Federal records are subject to being offered as evidence to support the government's contention in litigation, precautions should be taken to assure their admissibility and probative value.

Presented herein are:

  1. a compilation of Federal Rules of Evidence and statutory provisions that are particularly relevant in offering such evidence for admission in Federal court; and
  2. requirements for laying a proper foundation for its admissibility. The discussion is directed to managers or custodians of electronically filed Federal records. It is intended to provide guidance that will assure proper procedures are followed that will preserve the "trustworthiness" of these records as evidence.

It should be noted that the rules of evidence are no different for electronically filed records than for paper records. However, because electronic files are particularly susceptible to purposeful or accidental alteration, or incorrect processing, laying a foundation for their admission must be done with particular care. Proper control over creation and maintenance of these files can be crucial in overcoming inevitable objections that will be raised in the courtroom.

1/ U.S. Code Title 44, S 3301 states in pertinent part that Federal records:

includes all books, papers, maps, photographs, machine readable materials or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the U.S. Government...

Although creation and maintenance of electronic files inherently imposes strict procedural controls, inadequate documentation or inability to explain these controls in laymen's terms can have dire consequences either in getting such evidence admitted or in the weight it is accorded in terms of probative value.

II. THE BEST EVIDENCE RULE, HEARSAY AND AUTHENTICATION

The filing of records electronically means to store computer processed information in storage media such as magnetic disks or tapes, where the information is represented in the storage media in the form of "machine readable" codes or patterns imprinted on magnetizable surfaces by electronic impulses. 2/ Although the information is "filed" electronically in these media, the files themselves are in reality magnetic files. In any case, such files are considered "writings or recordings" in Federal courts. 3/

1.The Best Evidence Rule

Magnetic files are called "machine readable" because they can be copied into a computer for processing and interpreted for printing out in human readable form on paper or microfilm, or on a video display screen. Before the courts, an "original" of a record is the record itself, which can pose a problem regarding computer printouts in the face of the "best evidence rule." This rule, when rigidly applied, precludes admissibility of anything but the original document to prove its content. Recognizing the impracticality of this rule when applied to magnetic files, many states and the Federal government have adopted rules that define computer printouts as original, provided that they have been shown to accurately reflect the information in the magnetic files. 4/ Absent such a rule, at least one court has taken the view that printouts of records stored in magnetic media are admissible because they are "unavailable and useless except by means of the printout sheets." Kind v. State ex. rel. Murdock Acceptance Corp., 222 So.2d 393, 398 (Miss. 1969).

2/ In the case of optical disk files (e.g., CD-ROM), the information is, in most instances, "etched" on the surface of a specially coated disk with a laser beam. Although the information stored on an optical disk is in effect a bit-pattern "image" of optically scanned literal, graphic or pictorial information (as opposed to binary-coded characters), it is nonetheless "machine-readable" and, in the absence of statutory or case law to the contrary, should be treated no differently than information stored on magnetic disk or tape regarding its admissibility and trustworthiness. (In fact, an argument could be made that read-only files are more trustworthy!)

3/ Federal Rules of Evidence, Rule 1001(l) states in pertinent part:

"Writings and recordings" consist of letters, words, or numbers, or their equivalent, set down by... magnetic impulse, mechanical or electronic recording, or other form of data compilation.

Federal Rule of Evidence 1002 states that "[t]o prove the content of a writing, recording or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." The Federal Rules of Evidence do indeed provide otherwise. With regard to duplicates and public or official records, the rules state in pertinent part as follows:

  • A "duplicate" is a counterpart produced by the same impression as the original,... or by mechanical or electronic re-recording,... or by other equivalent techniques which accurately reproduce the original. Federal Rule of Evidence 1001(4).
  • A duplicate is admissible to the same extent as an original unless
    • ​(l) a genuine question is raised as to the authenticity of the original or
    • ​(2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Federal Rule of Evidence 1003.
  • The contents of an official record, or of a document authorized to be filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. Federal Rule of Evidence 1005.

4/ Federal Rules of Evidence, Rule 1001(3) states in pertinent part:

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.... If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."

These rules would seem to consider as duplicates, or copies of official records, additional printouts of the same information contained in a magnetic file produced at different times, as well as carbon, photostatic or xerographic copies.

U.S. Code Title 28, S 1732 (commonly known as the Business Records Act) provides for admissibility of copies or reproductions of original records produced in the regular course of business. This section states in pertinent part:

If any...department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any...process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not.... The introduction of a reproduced record...does not preclude admission of the original....

(Federal Rule of Evidence 803(6), stated below, closely parallels the Business Records Act.)

U.S. Code Title 28, S 1733 is pertinent regarding government records and papers that may be electronically filed with the caveat that it is superseded by the Federal Rules of Evidence.

The section states:

(a) Books or records of account or minutes of proceedings of any department or agency of the U.S. shall be admissible to prove the act, transaction, or occurrence as a memorandum of which the same were made or kept.

(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the U.S. shall be admitted in evidence equally with the original thereof.

(c)This section does not apply to cases, actions, and proceedings to which the Federal Rules of Evidence apply.

2. Hearsay

As was pointed out earlier, a computer printout is regarded as an original writing or recording. A computer printout offered to prove the truth of its contents is considered hearsay.

Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement" is defined to include a written assertion. Federal Rule of Evidence 801(c). Hearsay is not admissible in Federal court except as provided by the Federal Rules of Evidence "or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Federal Rule of Evidence 802.

Among the exceptions enumerated in Federal Rule of Evidence 803 that are particularly relevant to computer printouts are the following, stated in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

  • (6) Records of regularly conducted activity

A memorandum, report, record, or data compilation, in any form, or acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

  • (7) Absence of entry in records kept in accordance with the provisions of paragraph (6)

Evidence that a matter is not included in the memorandum, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind which a memorandum, report, record, or data compilation was regularly made and pre served, unless the sources of information or other circumstances indicate lack of trustworthiness.

  • (8) Public records and reports

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

(A) the activities of the office or agency, or

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or

(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

  • (9) Records of vital statistics

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

  • (10) Absence of public record or entry

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

  • (14) Records of documents affecting an interest in property

The record of a document purporting to establish an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

  • (15) Statements in documents affecting an interest in property

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

  • (16) Statements in ancient documents

Statements in a document in existence twenty years or more the authenticity of which is established.

It should be noted that computer business records prepared for litigation ordinarily are not admissible under the Business Records Act or Rule 803(6) because they fail the test of being "created for motives that tend to assure accuracy." U.S. v. Sanders, 749 F.2d 195, 198 (5th Cir. 1984). (However, see Sanders, supra, at 198, where the data contained in such records "were the results of business transactions that were neither added to nor modified after the transaction took place.")

3.Authentication

Any tangible thing offered as evidence is subject to challenge regarding its genuineness. Computer printouts are no exception. Federal Rule of Evidence 901(a) states:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Federal Rule of Evidence 901(b) lists examples of authentication by way of illustration, including the following that are particularly pertinent to the admissibility of computer printouts.

  • (1) Testimony of witness with knowledge

Testimony that a matter is what it is claimed to be.

  • (7) Public records or reports

Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

  • (8) Ancient documents or data compilation

Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

  • (9) Process or system

Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

  • (10) Methods provided by statute or rule

Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Certain documents or records (including computer printouts) are self- authenticating, as provided in Federal Rule of Evidence 902, which states in pertinent part:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

  • (1) Domestic public documents under seal

A document bearing a seal purporting to be that of the U.S., or of any State, district, Commonwealth, territory, or insular possession thereof, or of the Panama Canal zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

  • (2) Domestic public documents not under seal

A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political sub-division of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

  • (4) Certified copies of public records

A copy of an official record or report or any entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

  • (5) Official publications

Books, pamphlets, or other publications purporting to be issued by public authority.

  • (8) Acknowledged documents

Documents accompanied by a certificate of acknowledgement executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgements.

  • (10) Presumptions under Acts of Congress

Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

III. LAYING A PROPER FOUNDATION

Laying a foundation is "the practice or requirement of introducing evidence of things necessary to make further evidence relevant, material or competent..." Black's Law Dictionary. Federal Rule of Evidence 104 states in pertinent part:

  • (a) Questions of admissibility generally

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provision of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

  • (b) Relevancy conditioned on fact

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

  • (e) Weight and credibility

This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Heretofore, discussions centered on admissibility in terms of the intrinsic nature or character of evidence, i.e., original, hearsay or authenticated writings or records. The greater burden to be overcome can be in laying a foundation that will qualify the evidence as being what it is purported to be (e.g., a record prepared in the ordinary course of business).

Electronically filed Federal records are invariably offered as business records prepared in the ordinary course of business. In U.S. v. Croft, 750 F.2d 1354 (C.A.Wis. 1984), the court stated:

It is well-settled that computer compilations may constitute business records for purposes of Fed.R.Evid 803(6) and may be admitted at trial if a proper foundation is established.5/

Laying a foundation for electronically filed records can be particularly difficult, as explicitly pointed out in U.S. v. Scholle, 558 F.2d 1109 (8th Cir. 1977):

Even where the procedure and motive for keeping business records provide a check on their trustworthiness..., the complex nature of computer storage calls for a more comprehensive foundation. Assuming properly functioning equipment is used, there must be not only a showing that the requirements of the Federal Business Records Act have been satisfied, but in addition the original source of the computer program must be delineated, and procedures for input control including tests used to assure accuracy and reliability must be presented.

5/ See also U.S. v. Catraban, 836 F.2d 453, 457 (9th Cir. 1988); U.S. v, Glasser, 773 F.2d 1553, 1559 (11th Cir 1985), citing Rosenburg, v. Collins, 624 F.2d 659, 665 (5th Cir. 1980).

However, a later decision downplays the difference between computer records and other records, which probably reflects the increased use of computers in creating and maintaining business records in the ordinary course of business. In U.S. v. Vella, 673 F.2d 86 (C.A.Tex. 1982), the court, citing Scholle, stated:

...While the suggestion has been made that there are unique foundation requirements for the admission of computerized business records under Rule 803(6), see generally U.S. v. Scholle,... this court has previously held that "computer data compilations... should be treated as any other record of regularly conducted activity." Rosenburg, supra, at 665.

The Scholle court cited U.S. v. Russo, 480 F.2d 1228 (6th Cir. 1973), which appears to be a leading case concerning the admissibility of computer stored evidence. The following excerpts from Russo 6/ summarize what is involved in such cases, suggesting the foundation that must be laid:

  • ...Assuming that properly functioning computer equipment is used, once the reliability and trustworthiness of the information put into the computer has been established, the computer printouts should be received as evidence of the transactions covered by the input
  • ...Since the computer printout is just a presentation in structured and comprehensive form of a mass of individual items, it is immaterial that the printout itself was not prepared until...months after the close of the year.... It would restrict the admissibility of computerized records too severely to hold that the computer product, as well as the input upon which it is based, must be produced at or within a reasonable time after each act or transaction to which it relates.

6/ The court's citations to the excerpts are omitted for the sake of brevity.

...The Federal Business Records Act was adopted for the purpose of facilitating the admission of records into evidence where experience has shown them to be trustworthy. It should be liberally construed to avoid the difficulties of an archaic practice which formerly required every written document to be authenticated by the person who prepared it.... The Act should never be interpreted so strictly as to deprive the courts of the realities of business and professional practices.

...[T)he foundation for admission of (computerized records) consists of showing the input procedures used, the tests for accuracy and reliability and the fact that an established business relies on the computerized records in the ordinary course of carrying on its activities. The (opposing) party then has the opportunity to cross-examine concerning company practices with respect to the input and as to the accuracy of the computer as a memory bank and retriever of information.... (T)he court (must) "be satisfied with all reasonable certainty that both the machine and those who supply its information have performed their functions with utmost accuracy." ... [T)he trustworthiness of the particular records should be ascertained before they are admitted and...the burden of presenting an adequate foundation for receiving the evidence should be on the parties seeking to introduce it rather than upon the party opposing its introduction.

In laying a proper foundation for admissibility of electronically filed evidence, Federal records managers or custodians, or personnel involved in the preparation, maintenance and handling of such records, are subject to being selected as witnesses for the government. The remainder of this section is a discussion of witness selection, the bulk of which was excerpted from a Department of Justice monograph for Federal prosecutors and investigators written by the author of this guideline entitled Basic Considerations in Investigating and Proving Commuter-Related Federal Crimes. It indicates court attitudes towards qualifications of witnesses called to testify as to the accuracy and reliability of computer records.

Care must be taken to select a witness "competent" to testify in laying a foundation for admissibility of computer-produced evidence. The court in U.S. v. Fendley, 522 F.2d 181 (5th Cir. 1975), emphasized that the "preparer" of a record is not required to establish its authenticity:

...A witness laying the foundation for admissibility of a document as a business record need not have been the preparer of the document. U.S. v. Germillion, 464 F.2d 901, 906 (5th Cir. 1972) -- for indeed this court stated that: "Section 1732 was adopted in part to eliminate the requirement that the entrant appear to authenticate the record." U.S. v. Miller, 500 F.2d 751, 754.

"[T)he person who actually keeps the books and records and makes the entries need not testify if a person does testify who is in a position to attest to the authenticity of the records." U.S. v. Dawson, 400 F.2d 194, 199 (2d Cir. 1968).... [N]othing in the Business Records Act requires either that the foundation witness be able to personally attest to the accuracy contained in the document, or that he have personally prepared the document. In fact, (this) requirement (has) been frequently held to have been specifically eliminated by 28 U.S.C. S 1732. 7/

7/ Citing U.S. v. Miller, supra, U.S. v. Germillion, supra, U.S. v. DeFrisco, 441 F.2d 137 (5th Cir. 1971). See also U.S. v. Briscoe, 896 F.2d 1476, 1404 (7th Cir. 1990), citing United States v. Chappell, 698 F.2d 308, 311 (7th Cir.), cert. denied, 481 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); U.S. v. Hutson, 821 F.2d 1015, 1020 (5th Cir. 1987; U.S. v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985) (where testimony of a computer programmer was not necessary in order to authenticate computer- generated records); United States v. Linn, 889 F.2d 209, 216 (9th Cir. 1989).

In Croft, the court upheld admission of computer printouts based on testimony of the Director of Payroll and Benefits of a university, whose office maintained and supervised payroll data compiled and printed out by computer. He was able to testify that:

  1. the printouts were made contemporaneously with or near the time the payroll data became available; 8/

8/ The courts have recognized the irrationality of requiring that computer printouts must meet this test. See U.S. v. Hutson, supra, at 1020, where the court found admissible a printout made several months after the business transaction took place. The printout had a date showing when it was printed as well as the date that the recorded transaction took place. See also U.S. v. Russo, supra, at 1240; U.S. v. Sanders, supra, at 198, citing U.S. v. Russo.

  1. the printouts were kept in the regular course of business, and it was the regular practice of the university to make such printouts;
  2. the payroll data information entered into the computer and compiled in the printouts was reviewed and audited for errors throughout the year by his staff; and that
  3. the university relied on the printouts to complete more than 60,000 W-2 employee payroll forms annually. 9/

In Russo, the foundation was layed by testimony of the Director of Service Review of Blue Shield of Michigan, who described the overall claims processing procedures, and the vice president of Michigan Blue Shield in charge of all computer functions, who described the computer equipment used and its particular functions in the procedures in question. In rejecting the defendant's claim that no proper foundation was laid, the court pointed out that "(t)he witnesses...were qualified as experts by education, training and experience and showed a familiarity with the use of the particular computers in question. The mechanics of input control to assure accuracy were detailed at great length as was the description of the nature of the information which went into the machine and upon which the printout was based." 10/

In U.S. v. Weatherspoon, 581 F.2d 595, 598 (7th Cir. 1978), the court found that: "Pursuant to the testimony of a VA supervisory employee who was familiar with the preparation and use of the printouts, the Government showed to the satisfaction of the trial court (1) what the input procedures were, (2) that the input procedures were accurate within two percent, (3) that the computer was tested for internal programming errors on a monthly basis, and (4) that the printouts were made, maintained and relied on by the VA in the ordinary course of business activities."

9/ U.S. v. Croft, supra, at 1364-65.

10/ U.S. v. Russo, supra, at 1233-34, 1241.

Particular care should be taken to have the foundation witness prepared to testify in detail as to the preparation and control of the input data. In Scholle, the printouts were the product of a computer system called STRIDE that "computerizes" the physical characteristics of seized and tested drugs, based on input including "types of drugs, their potency, components, dilutants, location collected, data analyzed, packaging information and price." The computer data was retrieved on a daily basis by the Section Chief of the Investigative Service Section of the Drug Enforcement Administration, who was called as a witness to explain the printouts. The court "recognized the propriety of treating routinely made and recorded laboratory analyses of drugs as business records admissible under the Federal Business Records Act" 11/ and upheld admission of the printouts, but in so doing had qualms with the adequacy of the foundation concerning the trustworthiness of the input data submitted by the field offices:

In this case (the witness), being the founder of STRIDE and qualified by training, experience and position to testify about the system, adequately established that the disputed printouts reflected drug analyses computerized routinely during the regular course of business at the Drug Enforcement Administration, and also described in detail the source of the information upon which the printout was based. The government presented very little evidence concerning the mechanics of how input from eight widely dispersed laboratories is controlled or tested for its accuracy and reliability.

...In evaluating the admission of the disputed printout, we must consider the reliability of what goes into the commuter as well as the reliability of what comes out. 12/

Much of the above discussion on laying a proper foundation applies primarily to records that qualify as records stored electronically in the ordinary or regular course of business. Special problems arise when dealing with records created by transcribing information from paper records to computer files, or that are the result of computer compilation or calculation such as a statistical report. In these circumstances, a systems analyst or programmer will likely be required to testify as to how the input data was manipulated to produce the record or report offered as evidence, and the original paper records (or listings of the input data) must be made available for inspection. If the process of converting data to machine readable form was not supervised by the testifying systems analyst or programmer, then someone who can attest to the validity of that process will be required.

11/ U.S. v. Scholle, supra, at 1124.

12/ U.S. v. Scholle, supra, at 1125.

In summary, "[a]s long as the government provides sufficient facts to warrant a finding that the records are trustworthy and the opposing party is afforded an opportunity to inquire into the accuracy thereof and how the records were maintained and produced, a proper foundation has been established." U.S. v. Briscoe, supra, at 1494-95, citing U.S. v. Croft, supra, at 1365 n.7.

IV.CONCLUSION

The introduction of electronically filed records as evidence can be difficult because of the avenues open for challenging their relevance and reliability. Common assaults on the integrity of computer stored or generated files include questioning:

  1. the source of the input data or information and the process for transcribing it to machine readable form;
  2. the computer programs that create, edit and update the files;
  3. the computer programs that produce the output or stored files; and
  4. the reliability of the hardware and vendor-supplied "off-the-shelf" software that systematically manages the internal processes of the computer.

The increasing use of computers in creating and maintaining records in the ordinary course of business has resulted in the courts' tending to treat printouts of electronically stored "business" records no differently than other records. However, the increased complexity of safeguarding the integrity of computer files accessible through remote terminals can dampen this tendency. In any event, computer records not offered as business records will continue to present special foundation problems often requiring the testimony of technical experts.

It is the purpose of this guideline to provide an understanding of the rules of evidence as they apply to electronically filed records in order that appropriate agency procedures are instituted in creating and maintaining such records. Of particular importance is that Federal records managers or custodians assure the existence of up-to-date documentation that fully and accurately describes the procedural controls employed. Additionally, records managers or custodians must be prepared to describe these controls in laymen's term and to account for each link in the chain of events involved in producing the records. Apart from the requirements of the rules of evidence, preserving the integrity of Federal records in general is an inherent responsibility of anyone charged with their keeping.

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Prepared by the U.S. Dept of Justice, Justice Management Division,

Systems Policy Staff, Oct. 1990.

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