mcb@ncis.tis.llnl.gov (Michael C. Berch) (11/25/89)
In <3990@sbcs.sunysb.edu> brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes: > Chain letters through the mail are most certainly illegal, but I've > never heard of a decision on electronic chain letters. I don't think any > court in the country accepts evidence from a computer; computer mail is > taken as speech, so that the evidence in court is about as reliable as > hearsay. Huh? I don't think there is any court in the country that *doesn't* accept evidence from computers. Considering that the vast majority of accounting data in the U.S. is kept on computers, inability to accept computer data as evidence would, shall we say, throw quite a cramp into business litigation. Computer data -- reduced to printouts, graphics, or other tangible form -- is as admissible as any other kind of documentary evidence, so long as it is properly identified and authenticated via an offer of proof, *just like any other documentary exhibit*. Most computer data would be considered a business record and admissible under the business records exception to the hearsay rule. It is also properly the subject of a subpena duces tecum. I also do not know of any support for the assertion that "computer mail is taken as speech." If reduced to a printout, computer mail is as admissible as any other sort of writing, and requires the same authentication as any other writing (which admittedly may be more complex for e-mail than for, say, a typed business letter, but certainly not a big problem). I do not know of any cases involving UUCP or Internet mail, but other e-mail (e.g., PROFS, PC mail programs, Telex) has been used as proof in litigation. Computer data, including e-mail, raises some special issues regarding authentication (by which I mean authentication of the reduction to printing, not of the author of the writing or its contents), possibly requiring offer-of-proof testimony by, say, a system programmer or administrator regarding normal data storage and retrieval procedures, but these issues are pretty much settled by rule of court in most jurisdictions. Followups to misc.legal. -- Michael C. Berch Member of the California Bar mcb@tis.llnl.gov (until 11/27/89) mcb@presto.ig.com (thereafter)
brnstnd@stealth.acf.nyu.edu (Dan Bernstein) (11/27/89)
In article <628@ncis.tis.llnl.gov> mcb@ncis.tis.llnl.gov (Michael C. Berch) writes: > Huh? I don't think there is any court in the country that *doesn't* > accept evidence from computers. I've seen several cases where printouts were not accepted in court. For example, if a money machine messes up, you have absolutely no recourse. The receipts are worthless. (This may not be true in states other than New York. And I'm not a lawyer.) > Considering that the vast majority of > accounting data in the U.S. is kept on computers, inability to accept > computer data as evidence would, shall we say, throw quite a cramp > into business litigation. Of course. A business happens to store information on a computer; it prints it out, looks at the result, says happily ``yes, these are our accounting records,'' and submits the evidence. Here the evidence is the printout; the information in the evidence has nothing to do with the computer. In other words: The business is saying ``these sheets of paper contain our records.'' What does that have to do with computers? In contrast, New York courts consider money machine transactions to have a lot to do with computers. Say I submit a receipt as evidence; what do I say about it? ``This receipt details my interaction with the money machine.'' The computer here is not just a medium; it's the actual entity, the machine, that the evidence has to do with. > Computer data -- reduced to printouts, > graphics, or other tangible form -- is as admissible as any other kind > of documentary evidence, so long as it is properly identified and > authenticated via an offer of proof, *just like any other documentary > exhibit*. That's the tricky part. The courts (quite sensibly) consider it very difficult to authenticate evidence *that has to do with computers*. > I also do not know of any support for the assertion that "computer > mail is taken as speech." Case law. > I do not know of any cases > involving UUCP or Internet mail, but other e-mail (e.g., PROFS, PC > mail programs, Telex) has been used as proof in litigation. Sure, just as a taped conversation can. The problem is connecting what was supposedly said with who said it; and computer mail poses very similar difficulties to speech in this respect. It simply isn't taken as writing. > Michael C. Berch > Member of the California Bar California's a strange place. ---Dan
schaut@cat9.CS.WISC.EDU (Richard Schaut) (11/29/89)
In article <4052@sbcs.sunysb.edu> brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes: | In article <628@ncis.tis.llnl.gov> mcb@ncis.tis.llnl.gov (Michael C. Berch) writes: | > Huh? I don't think there is any court in the country that *doesn't* | > accept evidence from computers. | | I've seen several cases where printouts were not accepted in court. For | example, if a money machine messes up, you have absolutely no recourse. | The receipts are worthless. (This may not be true in states other than | New York. And I'm not a lawyer.) | | > Considering that the vast majority of | > accounting data in the U.S. is kept on computers, inability to accept | > computer data as evidence would, shall we say, throw quite a cramp | > into business litigation. | | Of course. A business happens to store information on a computer; it | prints it out, looks at the result, says happily ``yes, these are our | accounting records,'' and submits the evidence. Here the evidence is | the printout; the information in the evidence has nothing to do with | the computer. I think you're both right. Accounting data is different than most data that is found on computers in that there is an established audit trail for the accounting data. A court will accept that data from the computer because the trail from the numbers in the printouts to the original transaction documents can be traced. Very few computer printouts, including automatic teller receipts, have that kind of control behind them. Rick "Any questions? Any answers? Anyone care for a mint?" -- Rita Rudner
jimb@athertn.Atherton.COM (Jim Burke) (12/01/89)
In article <4052@sbcs.sunysb.edu> brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes: >I've seen several cases where printouts were not accepted in court. For >example, if a money machine messes up, you have absolutely no recourse. >The receipts are worthless. (This may not be true in states other than >New York. And I'm not a lawyer.) This is because the transaction was handled by a machine without a human being there to verify that you actually put the money in the envelope. You could punch in a zillion dollars and the machine will blindly print you a receipt without any verification. The only thing the receipt proves is that, yes indeed, you did punch in that number after punching the deposit button. You are not there later on when a teller clears and verifies the transactions. This is certainly riskier than if you are standing in front of the teller verifying their handling of your transaction. This is one reason I never deposit cash at a teller machine. It seems too risky although most banks do have two employees open and clear the machine to avoid theft by dishonest tellers. -- ****** Views expressed here in are my own ******* Jim Burke - consultant 408) 734-9822 | I'll stop posting when they pry my jimb@Atherton.COM | cold, dead fingers from the smoking {decwrl,sun,hpda,pyramid}!athertn!jimb | keyboard.
mcb@presto.ig.com (Michael C. Berch) (12/02/89)
In <4052@sbcs.sunysb.edu> brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes: > In <628@ncis.tis.llnl.gov> mcb@ncis.tis.llnl.gov (Michael C. Berch) writes: > > Huh? I don't think there is any court in the country that *doesn't* > > accept evidence from computers. > > I've seen several cases where printouts were not accepted in court. For > example, if a money machine messes up, you have absolutely no recourse. > The receipts are worthless. (This may not be true in states other than > New York. And I'm not a lawyer.) I think we are having a semantic disagreement here. By "not accepted in court" I assume (from the next sentence) that Mr. Berstein means, "was not sufficient to prove the truth of the assertions contained on the printout" as opposed to "was not considered admissible (that is, material, relevant, and competent) evidence". There is a large difference between these two assertions. Computer printouts and other tangible media are competent evidence, but they are often weak evidence as to the substance of the matters contained in them. This is true for many other types of evidence, such as unsigned writings and the like. The ATM receipt mentioned above is a good example of this "weak" evidence; as others have pointed out, an ATM receipt for a deposit is not particularly good evidence of the fact of a deposit, simply because the method used to print them does not include verification. A bank's evidence that the deposit envelope was empty when opened by the (usually) two required employees is much stronger evidence than a printed receipt. > > Considering that the vast majority of > > accounting data in the U.S. is kept on computers, inability to accept > > computer data as evidence would, shall we say, throw quite a cramp > > into business litigation. > > Of course. A business happens to store information on a computer; it > prints it out, looks at the result, says happily ``yes, these are our > accounting records,'' and submits the evidence. Here the evidence is > the printout; the information in the evidence has nothing to do with > the computer. > > In other words: The business is saying ``these sheets of paper contain > our records.'' What does that have to do with computers? Uhhh, no more and no less than any other printout (or any other business records)... If you have a custodian of records testify, in an offer of proof, you can authenticate the records as having come from a particular system on a particular date. (I have done this in court; it's extremely common.) The printouts then have a much greater evidentiary value than "random documents". But this is not limited to accounting records. > In contrast, New York courts consider money machine transactions to > have a lot to do with computers. Say I submit a receipt as evidence; > what do I say about it? ``This receipt details my interaction with > the money machine.'' The computer here is not just a medium; it's the > actual entity, the machine, that the evidence has to do with. Not because the evidence "has a lot to do with computers", but simply because the receipt has little evidentiary value. > > Computer data -- reduced to printouts, > > graphics, or other tangible form -- is as admissible as any other kind > > of documentary evidence, so long as it is properly identified and > > authenticated via an offer of proof, *just like any other documentary > > exhibit*. > > That's the tricky part. The courts (quite sensibly) consider it very > difficult to authenticate evidence *that has to do with computers*. I do not believe this to be true in practice. There are certainly continuing legal education seminars on the subject -- I get announcements in the mail -- but this is true of many types of litigation techniques and methods of presenting evidence. (There are seminars on "How to Use X-Rays and Imaging in Jury Trials" and so forth.) Courts are not nearly as bewildered by computer-derived evidence as many people think. -- Michael C. Berch (new address!) mcb@presto.ig.com / ames!bionet!mcb