A GUIDELINE FOR FEDERAL RECORDS MANAGERS OR CUSTODIANS
...[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.
II. THE BEST EVIDENCE RULE, HEARSAY AND AUTHENTICATION
1. The Best Evidence Rule
III. LAYING A PROPER FOUNDATION
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
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
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
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
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.
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
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
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
(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
(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.")
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
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
(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
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
...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
...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
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.
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:
l) 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.
2) the printouts were kept in the regular course of business, and it was
the regular practice of the university to make such printouts;
3) 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
4) 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
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
...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.
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
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
Prepared by the U.S. Dept of Justice, Justice Management Division,
Systems Policy Staff, Oct. 1990.
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