The Jurors, the Laptop and PowerPoint

As Wikipedia explains, a

closing argument . . . is the concluding statement of each party's counsel . . . reiterating the important arguments for the trier of fact, often the jury, in court case. A closing argument occurs after the presentation of evidence. A closing argument may not contain any new information and may only use evidence. . . .

In a criminal law case, the prosecution will restate all the evidence which helps prove each element of the offence.

The closing argument therefore reviews the evidence, but is not evidence itself, which is something the judge will instruct the jury on.

This is an example of such an instruction: “In their opening statements and closing arguments, the lawyers have talked to you about the law and the evidence. What the lawyers said is not evidence, but it may help you to understand the law and the evidence.” Arizona Pattern Jury Instructions – Criminal (3d ed. 2010).

An issue concerning the prosecutor’s closing argument came up in a case in which an Arizona defendant appealed his “conviction of one count of attempted child prostitution”, for which he was sentenced to ten years in prison. State v. Vanderschuit, 2011 WL 2935881 (Arizona Court of Appeals 2011). This is all I know about what led up to the charge:

[Dell Rainbow Vanderschuit] was indicted on one count of attempted child prostitution, a dangerous crime against children. At trial, Phoenix Police Officer Amanda Herman testified that she had initiated three telephone calls to [him] while posing as a caretaker to a fictional ten or eleven year old female. Officer Herman and [Vanderschuit] discussed [his] paying for the child to engage in sexual acts with him. The telephone calls were recorded and subsequently played for the jury during the trial.

State v. Vanderschuit, supra.

The issue we’re going to examine began when “[a]t the conclusion of Officer Herman's testimony, a juror asked the court if the `transcripts or the phone calls [were] available for jury review[.]’” State v. Vanderschuit, supra. The judge responded “in open court” by explaining that

`[w]hat is available for the jury is your notes, as well as all the evidence that has been admitted at this point in time. We have all three of the phone calls in evidence on CD form. Should you wish to review those recordings, playing devices will be provided which will be monitored by my staff. They will be replayed, should you wish. The staff cannot talk to you during those replaying of any of the phone calls and then the device itself and the CD will then be preserved at the clerk's desk.’

State v. Vanderschuit, supra.

Before they began to deliberate, the judge gave the jurors an instruction based on the one quoted above: “`[i]n their opening statements and closing arguments, the lawyers have talked to you about the law and the evidence. What the lawyers said is not evidence, but it may help you to understand the law and the evidence.’” State v. Vanderschuit, supra. The jurors then “reviewed the three telephone calls during their deliberation.” State v. Vanderschuit, supra.

Before they returned with their verdict, Vanderschuit’s lawyer raised a concern:

`It's come to my attention that the tape recordings [the jury was] listening to . . . were . . . on the State's laptop, and, the State's closing argument [was] on that laptop. I know [court staff] went in and turned it off for them and then left, but [the jury] had [the laptop] there by themselves. So I think that . . . gives the appearance of unfairness, if they had access to [the State's] PowerPoint presentation of her closing argument.’

State v. Vanderschuit, supra.

The prosecution responded as follows:

`With respect to the laptop computer, [Vanderschuit's attorney and Vanderschuit] were present when this was being discussed and I asked about the computer. There was discussion about me showing it. . . . So this is not something that just recently came to our attention. I was very candid in open court about providing a laptop or something. And there was no objection as to that, at the time.'

State v. Vanderschuit, supra.

Vanderschuit’s attorney then responded to that response:

`Actually, there was an objection. I requested if the jury wanted to hear the tape, that we all be brought back in and listen to the tapes in the courtroom. And then they could return and deliberate. And I did make that objection, Your Honor. I did make an objection to them listening to that by themselves. And I certainly didn't know that it was going to be on the same laptop that had her closing argument. I would have objected.'

`I'm not saying she tried to hide it from me, but I didn't know it was going to be in there with them, so I would have objected to that. And I'm objecting to that to preserve my record on that issue and would ask for a mistrial based on the fact that I don't think that he has received a fair trial in that respect.’

State v. Vanderschuit, supra.

The judge denied Vanderschuit’s motion for a mistrial, the case went to the jury and, as noted above, he was convicted. State v. Vanderschuit, supra. His attorney then moved for a new trial, arguing that it was error to let them deliberate with the laptop containing the closing argument in the jury room, but “did not ask the court . . . to question the jury as to whether they had touched, manipulated, attempted to access anything on the laptop, or actually reviewed anything on the laptop other than the recorded telephone conversations.” State v. Vanderschuit, supra.

This is how the prosecutor responded to that motion and that argument:

`After the jury retired to the jury room to begin deliberations, a discussion in open court was held in which it was decided that Counsel for the State's laptop (office issued, not personal) would be handed over to the Court's Judicial Assistant and Counsel for the State was asked to show the Court's Judicial Assistant how to operate the laptop. At no time did [Vanderschuit] further object to the laptop going back with the jury.'

`[He] actually knew before the verdict was returned that the State's closing argument [PowerPoint] presentation was on said laptop. The jury had no way of knowing where this [PowerPoint] was being stored on the computer, however. There was no other information related to the case contained on that laptop. Moreover, this [PowerPoint] was shown to the jury during closing argument.’

State v. Vanderschuit, supra.

The judge denied Vanderschuit’s motion and, as noted earlier, the jury convicted him. State v. Vanderschuit, supra. He appealed, asking the Court of Appeals to remand the “matter to the trial court in order for the State to reconstruct the PowerPoint presentation because it was not part of the record on appeal.” State v. Vanderschuit, supra. The Court of Appeals did so, and at the hearing the trial judge held on the matter

Theo McCalvin, judicial assistant to [the trial judge], testified that he placed the laptop on a separate table from the jurors, instructed them not to touch it, and played the recorded telephone calls for the jurors. [He] testified that although a `couple engineer[ ]’ jurors initially attempted to `access the computer,’ he instructed them not to. He stated that he did not open up a PowerPoint presentation on the laptop when it was in the jury room.

McCalvin testified that although he was not permitted to remain in the jury room during the deliberation period, he `checked in every ten or [fifteen] minutes with the jury to see if they needed anything’ while they listened to the recorded calls. [He] removed the laptop from the jury room at the conclusion of the recordings and noted at that time that `[t]o [his] knowledge’ he was `the only one that handled the’ laptop and `[n]othing ha[d] been touched’ on the laptop.

The trial court ordered the State to reconstruct the PowerPoint presentation because it no longer had the original presentation.

State v. Vanderschuit, supra.

On appeal, Vanderschuit argued that the trial judge erred in denying his motions for a mistrial and a new trial “because the State’s laptop contained extrinsic evidence and was temporarily place in the unsupervised jury room.” State v. Vanderschuit, supra. As I’ve noted in earlier posts, it’s improper for jurors to consider “extrinsic evidence,” i.e., evidence that was not formally presented to them at trial as part of the prosecution’s or defense’s case.

In ruling on Vanderschuit’s appeal, the Court of Appeals noted that a judge can “grant a new trial if the jurors `receiv[ed] extrinsic evidence not properly admitted during the trial” and if “it cannot be concluded beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict.’” State v. Vanderschuit, supra. (citing Arizona Rule of Criminal Procedure 24.1(c)(3)(i)). It also noted that the defendant “bears the initial burden of proving that the jury received and considered extrinsic evidence.” State v. Vanderschuit, supra (quoting State v. Hall, 204 Ariz. 442, 65 P.3d 90 (Arizona Supreme Court 2000)). And it explained that if the defendant “meets this burden prejudice must be presumed and a new trial granted, unless the State proves beyond a reasonable doubt that the extrinsic evidence did not affect the verdict.” State v. Vanderschuit, supra.

The Court of Appeals then held that the trial judge did not err in denying Vanderschuit’s motions for a mistrial and a new trial:

The court instructed the jurors that closing arguments were not evidence. Even assuming the PowerPoint presentation was akin to extrinsic evidence, [Vanderschuit] failed to make any showing that the jury received and considered extrinsic evidence.

First, McCalvin testified that he instructed the jurors, in his professional capacity as a representative of the court, not to touch or manipulate the laptop that contained the recorded t calls and the State's PowerPoint presentation. He placed the laptop on a separate table from where the jurors were seated, frequently checked on the jurors while the recordings were played, and he believed the jurors followed his instructions.

Second, [Vanderschuit] did not request that the court recall the jurors back to the courthouse to ascertain whether they had viewed the PowerPoint presentation.

State v. Vanderschuit, supra.

The court therefore found that because “nothing in the record . . . indicates[s] the jury received and considered extrinsic evidence,” prejudge “is not presumed”, so the trial judge was correct in denying both motions. State v. Vanderschuit, supra. It consequently affirmed Vanderschuit’s conviction and sentence. State v. Vanderschuit, supra.

Maybe judges should have a court laptop to be used in situations like this . . . ?

Expungement and “Public Records”

As Wikipedia explains, expungement is the process by which “a first time offender . . . seeks that the records of [a prior criminal conviction] be sealed, thereby making the records unavailable through the state or Federal repositories.” This post is about an Iowa case in which a man tried to have similar information removed from computer case records.

The case is Judicial Branch, State Court Adm’r v. Iowa District Court for Linn County, __ N.W.2d __, 2011 WL 2732400 (Iowa Supreme Court 2011) (which I’m going to refer to as Judicial Branch). In February of 2009, J.W.^, the man seeking the expungement, was

arrested and charged with operating while intoxicated, first offense, along with three accompanying traffic offenses. After J.W. prevailed on a motion to suppress evidence, the State moved to dismiss the four criminal charges. On July 20, the district court granted the motion and dismissed the charges with costs assessed to the State.

Judicial Branch, supra.

On November 18, J.W. filed a “motion to exclude and expunge any information pertaining to the four dismissed criminal charges pursuant to Iowa Code § 692.17,” which provides as follows:

1. Criminal history data in a computer data storage system shall not include arrest or disposition data or custody or adjudication data after the person has been acquitted or the charges dismissed. . . .

2. For the purposes of this section, `criminal history data’ includes the following:

a. In the case of an adult, information maintained by any criminal justice agency if the information otherwise meets the definition of criminal history data in section 692. 1, except that source documents shall be retained.

Judicial Branch, supra.

J.W. asked that the information be removed from “the Iowa Court Information System (ICIS), including the website Iowa Courts Online, and the computer data storage systems for the Linn County Sheriff, the Cedar Rapids Police, the Iowa Division of Criminal Investigation, and the Federal Bureau of Investigation.” Judicial Branch, supra.

On December 28, the district court granted his request to expunge the four dismissed criminal charges from the “computer data storage systems for the Department of Public Safety and its Division of Criminal Investigation, the Linn County Sheriff's Office, the Linn County Attorney's Office, and the Cedar Rapids Police Department” but denied it as to the FBI. Judicial Branch, supra. The court also found that the “`computer data storage systems’ for the state judicial branch included the electronic docket entries on ICIS and the website Iowa Courts Online and ordered information relating to the four dismissed criminal charges to be removed from those repositories.” Judicial Branch, supra.

On January 19, 2010, the Iowa Attorney General, “appearing on behalf of the Iowa Judicial Branch and the Iowa State Court Administrator,” filed a motion to vacate the order, for a new hearing and for a stay. Judicial Branch, supra. He argued that the “computerized information pertaining to J.W.'s charges kept by the state judicial branch consisted of court docket entries that met the definition of `public records’” under Iowa Code § 692.18(1). Judicial Branch, supra.

Section 692.18(1) states that “[n]othing in this chapter shall prohibit the public from examining and copying the public records of any public body or agency as authorized by chapter 22.” Judicial Branch, supra. The Attorney General also pointed out that § 22.7(9) “of chapter 22 further provides that `criminal history data shall be public records.’” Judicial Branch, supra.

J.W. opposed the Attorney General’s request, arguing that Iowa Code § 692.17 required removing the information from the state judiciary’s computer systems and/or that the “Equal Protection Clause of Article I § 6 of the Iowa Constitution compelled the same result.” Judicial Branch, supra. Article I § 6 of the Constitution says “[a]ll laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

The district court judge denied the Attorney General’s request and he took it to the state Supreme Court. Judicial Branch, supra.

In ruling on J.W.’s first argument, the Supreme Court noted that § 692.17 was part of legislation the state adopted in response to the FBI’s creation of the National Crime Information Center in 1967. Judicial Branch, supra. The legislation was intended to control the dissemination of information collected by the Department of Public Safety and to establish standards for the use of the crime computer system by “all agencies with access to that system.” Judicial Branch, supra. It also noted that in “the wake of this legislation, the Department of Public Safety (DPS) established a statewide system known as the Iowa online warrants and articles (IOWA) criminal justice information system.” Judicial Branch, supra. The system provides access to databases from various Iowa agencies, the FBI, INTERPOL, etc. Judicial Branch, supra.

The Supreme Court explained that from its initial enactment, the legislation noted above “has provided that criminal history data in a “computer data storage system will not include `[a]rrest or disposition data after the person has been acquitted or the charges dismissed.’ See 1973 Iowa Acts ch. 294, § 17.” Judicial Branch, supra. It also noted that it was “undisputed that information about J.W.'s court case has been removed from the IOWA system.” Judicial Branch, supra. The issue in the case, then was whether

information about J.W.'s case must also be removed from the computerized docket maintained by the Iowa Judicial Branch. A `docket’ is the official record of all the proceedings and filings in a court case. Black's Law Dictionary 517 (8th ed.2004). Dockets are created and maintained by each of the clerks of the district courts.

Judicial Branch, supra (emphasis in the original).

The court explained that as “an official record of judicial proceedings that clerks of court are required to keep by law, dockets are `public records’”. Judicial Branch, supra. It also noted, though, that while § 692.17(1) says “disposition or adjudication data” cannot be retained in a data storage system after someone has been acquitted or the charges have been dismissed, Iowa Code § 692.17(2) says “source documents” in such cases shall be retained when the former defendant is an adult. Judicial Branch, supra. AND § 692.18(1) “states that nothing in chapter 692 `shall prohibit the “`public from examining and copying the public records of any public body or agency as authorized by chapter 22.’” Judicial Branch, supra. The court therefore had to sort all this out in order to address the issues raised by J.W.’s expungement request.

The Supreme Court held, first, that it did not believe the state legislature “directed the judicial ranch to purge from its official docket all cases that ended in the defendant’s favor” because doing so would eliminate the docket and that would be inconsistent with the statute requiring courts to keep dockets. Judicial Branch, supra. It also found that the “docket is potentially a `source document’”, the retention of which is required by § 692.17(2) when the former defendant is an adult. Judicial Branch, supra. And it also found that retention is required to ensure the public has access “to official records”, as required by § 692.18(1). Judicial Branch, supra. So J.W. lost on this issue.

The court then addressed J.W.’s equal protection argument under the Iowa Constitution. Judicial Branch, supra. J.W. argued that it was “it is unfair to treat recipients of a deferred judgment, whose criminal cases are not accessible to the public, more generously than individuals who were not convicted of a crime.” Judicial Branch, supra.

Section 907.3 of the Iowa Code lets a judge “defer judgment and . . . place the defendant on probation” subject to certain conditions, if it finds this warranted. Iowa Code § 907.4 says that the court clerk must enter “a permanent record of the deferred judgment” into the state’s “deferred judgment database”. Under § 907.4, the entry concerning the deferred judgment is a “confidential record exempted from public access” and can only be made available to judges, prosecutors, corrections officers and other officials involved in the criminal justice system.

So J.W. was arguing that he should at least be treated in the same way as someone who’s been convicted but had the conviction deferred and is placed on probation. Judicial Branch, supra.

He lost again. The Supreme Court found that, even if the law requiring public access to court records treated “similarly situated persons differently,” it wasn’t unconstitutional because it reflected a rational decision by the state legislature:

[It] could rationally determine that deferred judgments should not be accessible to the public but dismissals and acquittals should be. The legislature could rationally have concluded that denying public access to criminal proceedings that result in a deferred judgment serves the legitimate governmental purposes of promoting rehabilitation and incentivizing defendants to meet the terms of their accompanying probation. On the other hand, the legislature could have rationally concluded that denial of public access to dismissals and acquittals is not needed because the public can see for themselves that the charges were resolved in the defendant's favor.

Judicial Branch, supra.

The Supreme Court therefore sided with the Attorney General and held that the district court improperly ordered the information removed from the electronic court records. Judicial Branch, supra. In so doing, it noted that it was “mindful of J.W.’s concerns”, and included comments implying that perhaps the legislature should revisit these issues:

This case illustrates the impact of the internet on our daily affairs. Dockets always have been public records, but until the Iowa state court dockets became computerized and available on-line, it was not easy for the public to use them. Now, one can learn of any person's past involvement with Iowa's court system by making a few mouse clicks and a few strokes at a keyboard.

Judicial Branch, supra.

Expert Testimony, Hearsay and the Electronic Monitoring Device

This post examines a Wisconsin DUI (or OWI) case that raised a couple of interesting issues concerning Electronic Monitoring Devices (EMDs).

The case is State v. Kandutsch, __ N.W.2d __, 2011 WL 2820791 (Wisconsin Supreme Court 2011), and this is how it arose:

At 10:23 p.m. on June 19, 2006, several City of Wausau police officers and two Marathon County deputies responded to a 911 call from [Gregg] Kandutsch's estranged wife that someone was trying to break into her home. When the officers arrived . . . they discovered Kandutsch inside the home, having sustained serious injuries from breaking a glass door.

Kandutsch was transported to the hospital for treatment of his injuries, and a blood draw there revealed a blood alcohol content of .23 percent. . . . [H]e was [arrested] for operating while intoxicated. The police concluded Kandutsch had driven a vehicle while intoxicated because, when asked how [he] arrived at her home, [his] wife [said] he would have driven a green van, and later identified the vehicle parked in a nearby lot.

Kandutsch was charged with operating a motor vehicle on a highway while under the influence of an intoxicant, fifth and subsequent offense, contrary to Wisconsin Statutes §§ 346.63(1)(a), 346.65(2)(cm)5 and 939.50(3)(h).

State v. Kandutsch, supra.

The case went to trial before a jury, and at the trial the (apparently only) disputed issue

concerned whether Kandutsch operated the vehicle before or after he consumed alcohol. . . . Kandutsch was supervised by an electronic monitoring system through the DOC [Department of Corrections]. The State relied on a computer report generated by the EMD that purported to show when [he] was in and out of range of a monitor in Rib Mountain on the day in question to establish a timeframe showing that Kandutsch must have been intoxicated at the time he drove to his wife's home.

The report included a notation showing Kandutsch was `out of range’ at 22:03, or 10:03 p.m., on June 19, 2006. The distance between [his] mother's home, in Rib Mountain, to his wife's home, in Wausau, was approximately a 15-minute drive. The 911 call from Kandutsch's wife was received at 10:23 p.m. on the night in question. Because Kandutsch was highly intoxicated at the time the officers arrived on the scene, shortly after the 911 call, the State theorized that Kandutsch must have been intoxicated before he left his mother's home and began driving.

State v. Kandutsch, supra.

Kandutsch, on the other hand, maintained that he did not become intoxicated until

after he had driven to his wife's home. He testified . . . that he left his mother's home a little after 9:00 p.m., arriving at his wife's around 9:35 p.m. When he knocked on his wife's door, no one answered, so he walk[ed] to a tavern called the Cop Shop about three blocks away.

Kandutsch . . . consumed $20.00 worth of Southern Comfort whiskey liqueur and a pitcher of beer. After consuming the alcohol, he walked back to his wife's home, and it was at that point the break-in occurred. Kandutsch testified that, although he was out of range at 10:03 p.m., the EMD report was inaccurate, because he actually left his mother's home at 9:10 p.m. He . . . concede[d] on cross examination that the other times listed on the report showing . . . were all accurate.

State v. Kandutsch, supra.

Kandutsch’s probation agent, Amy Klarkowski’s testimony provided the foundation for admitting the EMD report into evidence. State v. Kandutsch, supra. She described the program as a system

consisting of a home monitoring unit and a radio frequency device, usually attached to the person's ankle. Klarkowski [said] the monitoring unit has a range of about 150 feet and is connected by telephone to an electronic monitoring center staffed by the DOC. . . .

[She said] any movement by the radio frequency device in and out of the monitoring unit's range is noted on computer-generated reports at the DOC monitoring center. . . . Klarkowski [said] . . . [t]he system is designed to keep working despite power outages or attempts to remove the ankle bracelet. [She] had . . . supervised 30-35 individuals . . . [and] not only had never had any problems with a unit herself, but had never heard of a unit generating a false report.

State v. Kandutsch, supra. Klarkowski’s supervisor, who had used the system for twenty years, provided similar testimony. State v. Kandutsch, supra.

When the prosecution then moved to introduce the EMD reports from Kandutsch’s unit for the night in question, he objecting, arguing (i) that the prosecution had not supplied an adequate foundation for the reports to be admitted and/or (ii) the reports were inadmissible hearsay. State v. Kandutsch, supra. The trial judge admitted the reports and the jury convicted Kandutsch of “driving under the influence of alcohol, fifth . . . offense.” State v. Kandutsch, supra.

Kandutsch appealed his conviction – raising the same arguments as to why the reports should not have been admitted -- to the Wisconsin Court of Appeals, which affirmed. He then appealed to the Wisconsin Supreme Court. State v. Kandutsch, supra.

In ruling on the second issue, the Supreme Court explained that under Wisconsin law, expert testimony is a condition that must be met before evidence can be admitted only if “the issues before the jury are `unusually complex or esoteric’”. State v. Kandutsch, supra (quoting White v. Leeder, 149 Wis.2d 948, 440 N.W.2d 557 (1989)). “In other words, the [trial judge] must find that the underlying issue is `not within the realm of the ordinary experience of mankind.’” State v. Kandutsch, supra (quoting Cramer v. Theda Clark Mem. Hosp., 45 Wis.2d 147, 172 N.W.2d 427 (1969)).

The Supreme Court noted that in determining what constitutes the “`ordinary experience of mankind,’” courts should evaluate the need for expert testimony on a case-by-case basis. State v. Kandutsch, supra. It also noted that “[w]hen an issue can be determined `by common knowledge’” the trial judge “should allow the issue to go to the jury without first requiring expert testimony.” State v. Kandutsch, supra.

Kandutsch relied on Wisconsin cases that involved the need for expert testimony to establish a foundation for the use of and/or results of various medical devices, but the Supreme Court found these cases were not on point. State v. Kandutsch, supra. It therefore rejected Kandutsch’s argument that “while radio signals and telephone connections are well-known technologies easily understood by jurors without the aid of experts, the interplay of these technologies in effect creates a `new’ technology that is not so readily understood.” State v. Kandutsch, supra. It also found that the analogy the Court of Appeals relied on was “directly on point” and provided “a common sense perspective” on the admissibility of the EMD reports. State v. Kandutsch, supra.

As the court of appeals noted. . . . [t]he cordless telephone, in existence for over three decades, uses the same technologies as the electronic monitoring system. The base station of the phone converts information it receives over a standard phone connection to an FM radio signal which is broadcasted to a wireless handset, and vice versa. . . . [T]he telephone company documents calls placed and received on a bill that, like the daily summary reports at issue in this case, is generated by computer.

State v. Kandutsch, supra.

The Supreme Court therefore concluded that the “intersection of radio signals and telephone connections does not convert the EMD into an issue so `unusually complex or esoteric’ that the jury required the aid of expert testimony to interpret the information. Accordingly, we decline to take the extraordinary step of requiring expert testimony to introduce evidence of the EMD at issue here.” State v. Kandutsch, supra.

It then addressed Kandutsch’s related argument that the prosecution hadn’t established an adequate foundation for admitting the evidence. State v. Kandutsch, supra. It began its analysis of this issue by noting that even when expert testimony is not required, “the proponent of non-testimonial evidence is usually required to lay the foundation for the admissibility of that evidence through lay witnesses” and that such a foundation “is laid . . .`by evidence sufficient to support a finding that the matter in question is what the proponent claims.’” State v. Kandutsch, supra. After reviewing relevant cases, the court found that the testimony of Klarkowski and her supervisor established the necessary foundation. State v. Kandutsch, supra.

The court then took up Kandutsch’s argument that the EMD reports were inadmissible hearsay. State v. Kandutsch, supra. As I’ve explained in earlier posts, hearsay is basically second-hand evidence, i.e., it’s an out of court statement by someone who doesn’t testify at trial that is admitted to prove the truth of the speaker asserts. As I’ve also explained, hearsay isn’t admissible unless it falls within certain, clearly specified exceptions to the rule barring its use.

The prosecution argued that the hearsay rule “encompasses only human declarants, not machines or automatic processes”, but the Supreme Court noted that most federal courts have “considered computer reports as hearsay.” State v. Kandutsch, supra. It also noted that some courts (and the U.S. Department of Justice) draw a distinction between computer-stored records, which are considered hearsay because they store the statements of a human being, and computer-generated records, which are “the self-generated record or a computer’s operations” resulting from its programming. State v. Kandutsch, supra. It explained that the courts that take this position have held that computer-generated records are not hearsay. State v. Kandutsch, supra.

The Wisconsin Supreme Court had not addressed this issue before, but it ultimately decided to go with the latter group of courts, and distinguish between computer-stored records (hearsay) and computer-generated records (not-hearsay). State v. Kandutsch, supra. It noted that the rule against hearsay is intended to protect against “`ambiguity, insincerity, faulty perception, and erroneous memory’”. State v. Kandutsch, supra (quoting Laurence Tribe, Triangulating Hearsay, 87 Harvard Law Review 957 (1974)).

The court found that computer-generated records suffer from none of these, noting that Klarkowski “perhaps summarized it best when she testified regarding the EMD, `It doesn't have a mind of its own, it's a computer device, it's a high-tech device, it reports things when they happen.’" State v. Kandutsch, supra. It therefore rejected Kandutsch’s arguments and affirmed his conviction. State v. Kandutsch, supra.