One kind of evidence that is not admissible – unless it falls within certain exceptions to the blanket rule deeming it inadmissible – is hearsay.
Rule 801(c) of the Federal Rules of Evidence 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.” Every U.S. state has a similar provision. Rule 802 of the Federal Rules of Evidence (and comparable state provisions) also says hearsay “is not admissible unless provided by these rules”.
Why is hearsay excluded (except if it comes within certain exceptions to rules like Rule 802)? It’s simply a matter of common sense and fairness.
If hearsay weren’t excluded, John Doe could take the stand and say that Jane Doe told him that the defendant – Richard Roe – who’s on trial for murder confessed to the whole thing. That puts Roe in a really bad place: If the jury believes what John Doe says – i.e., that Jane Doe heard Roe confess to the murder for which he is on trial – they’re almost certainly going to convict him (unless he’s arguing self-defense, say). Roe can try to show that John Doe is a liar or is mistaken or is insane or otherwise can’t be believed, but neither he nor his lawyers can do much with Jane Doe because she isn’t there . . . she’s a declarant who isn’t testifying at the trial.
Allowing second-hand evidence – someone’s repeating what someone else allegedly told them – opens up all kinds of possibilities for unfairness and error. We’ve probably all played that rumor game where something gets whispered to one person and then passed along and comes out totally garbled. That’s the kind of inadvertent error hearsay rules are intended to guard against; they’re also intended to guard against fabrication or deceit, i.e., intentional error.
So the theory of the hearsay rule is that – subject to certain exceptions – you can’t admit the statements of declarant who isn’t testifying at trial because that means the other party (Roe in my example) can’t cross-examine them. Roe can’t cross-examine Jane Doe, and cross-examination is, in the US and Britain, generally considered to be the best device for truth-testing. Jane Doe takes the stand and tells her story about Roe’s allegedly confessing to her, and Roe’s lawyer can try to show that she cannot be believed: she’s a pathological liar; she hates Roe and wants him to be convicted out of spite; she’s insane and therefore doesn’t know what the truth is; any or all of the above.
Now, let’s get to a cybercrime case where a hearsay issue came up.
In State v. Colwell, 715 N.W.2d 768 (Iowa Court of Appeals, 2006), Aaron Colwell appealed his conviction of two counts of making a false report under this statute:
A person who, knowing the information to be false, conveys or causes to be conveyed to any person any false information concerning the placement of any incendiary or explosive device or material or other destructive substance or device in any place where persons or property would be endangered commits a class “D” felony.Iowa Code Annotated § 712.7.
According to the Iowa court of appeals, here are the facts that led to the conviction:
On March 11, 2004, the Bloomfield Foundry received two telephone calls warning foundry management of an alleged bomb on the premises. The employees were evacuated and authorities conducted a search of the foundry, which confirmed that the calls were false. Telephone records secured by the police showed that two calls originating from the same phone number were made to the foundry at the time of the bomb-threat calls. During the investigation, it was determined that the originating number was the home number of a foundry employee, Aaron Colwell. Colwell consistently denied making the calls, claiming that he was at a gas station about ten miles from his home around the time the calls were made. Colwell was charged with two counts of making a false report and found guilty following a jury trial in December 2004.State v. Colwell, supra.
One of the issues Colwell raised on appeal was the admission of “two telephone records documenting calls between Colwell’s residence and the foundry.” State v. Colwell, supra. He argued that the records were inadmissible hearsay.
Iowa uses the same definition of hearsay as the Federal Rule of Evidence I quoted earlier. So, is Colwell right? Were the records inadmissible hearsay?
Here is what the prosecution – the State – argued on that issue:
The evidence at trial shows that the computers which generated Exhibits 1 and 2 are programmed to automatically log and compile a record of calls made to or from a certain number. Jim Miller, general manager of Citizens' Mutual Telephone Cooperative, testified as to how the records were secured. The State does not dispute that it offered the telephone records to prove the truth of the matter asserted in them -- that calls to the foundry at the time the bomb threats were made originated from Colwell's home phone. However, the State urges us to conclude the records are not hearsay because they were produced by a computer that automatically records the trace between numbers when calls are placed.
State v. Colwell, supra.
In its argument, the State of Iowa also relied on this excerpt from a treatise on the law of evidence:
Because such records are not the counterpart of a statement by a human declarant, which should ideally be tested by cross-examination of that declarant, they should not be treated as hearsay, but rather their admissibility should be determined on the basis of the reliability and accuracy of the process involved.John W. Strong, et al., McCormick on Evidence § 294 (5th ed. 1999).
The Iowa court of appeals – like other courts – agreed with the prosecution: “We conclude that the computer-generated records tracing calls between certain phone numbers in this case are not hearsay, as they lack a human declarant required by our rules of evidence.” State v. Colwell, supra. As a Louisiana court explained a quarter of a century ago in a case also involving phone records, the
printout of the results of the computer's internal operations is not hearsay evidence. It does not represent the output of statements placed into the computer by out of court declarants. Nor can we say that this printout itself is a `statement’ constituting hearsay evidence. The underlying rationale of the hearsay rule is that such statements are made without an oath and their truth cannot be tested by cross-examination. Of concern is the possibility that a witness may consciously or unconsciously misrepresent what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or occurrence. With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.State v. Armstead, 432 So.2d 837 (Louisiana Supreme Court 1983).
In other words, the rule excluding hearsay is concerned with the fallibilities and falsehoods of humans . . . and computers cannot lie and can (as in this case) be shown to be reliable. (The court noted that the prosecution’s evidence – the testimony of Jim Miller – showed that the evidence was reliable, something that was not required, since the evidence was not hearsay.)
So, people can lie but computers can’t . . . at least not yet . . . .
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