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participation in obtaining the printouts, provided sufficient authentication of the records.

Similarly, the Connecticut Supreme Court recently affirmed that one who used computer r e c o r d s a n d h a d o n l y a n i n d i r e c t r o l e i n t h e i r p r o d u c t i o n w a s c o m p e t e n t t o t e s t i f y t h a t t h e r e c o r d s w e r e m a d e i n t h e o r d i n a r y c o u r s e o f b u s i n e s s . 1 4 I n F e d e r a l D e p o s i t I n s u r a n c e C o r p . v . Carabetta, defendants defaulted on a promissory note they had executed. Plaintiff sued to recover the amount in promissory notes from the defendants. The court determined that the f o u n d a t i o n a l r e q u i r e m e n t s f o r t h e c o m p u t e r r e c o r d s w e r e m e t t h r o u g h t h e t e s t i m o n y o f a t e c h n i c i a n w h o w a s f a m i l i a r w i t h F e d e r a l D e p o s i t s c o m p u t e r s o f t w a r e a n d h a r d w a r e . 1 5 T h e technician had received computer training, had access to all computer screens, and found Federal Deposit’s computer systems to be reliable. Defendants objected to the testimony based upon hearsay. The court reasoned that trial courts have considerable latitude in determining the admissibility of evidence in the areas of computer records. The court determined that the w i t n e s s s k n o w l e d g e o f t h e b a s i c e l e m e n t s t h a t a f f o r d r e l i a b i l i t y a n d t r u s t w o r t h i n e s s t o c o m p u t e r printouts outweighed the witness’s job description. 1 6

II. What you think is hearsay may not be: Some courts have determined that “computer- generated” is not hearsay while “computer-stored” information must satisfy the hearsay requirements in order to be admitted.

There is a debate as to whether “computer-stored” information, as opposed to “computer- generated” information, is hearsay. A growing body of caselaw indicates that “computer- generated” data should be treated differently than “computer-stored” data for purposes of satisfying the hearsay hurdle.

“Computer-stored” data are data that are maintained in computerized form and contain the dangers inherent in hearsay. Courts have developed various tests to satisfy their concerns. Some courts are requiring that the offeror (1) authenticate the exhibit as the printout it purports to be; (2) authenticate the process by which it was prepared to show that it produces printouts that a c c u r a t e l y r e f l e c t t h e i n p u t d a t a ; a n d ( 3 ) l a y a f o u n d a t i o n f o r a d m i s s i b i l i t y o f t h e e x h i b i t a s a r e c o r d o f r e g u l a r l y c o n d u c t e d a c t i v i t y 1 7 w h e n a t t e m p t i n g t o i n t r o d u c e c o m p u t e r - s t o r e d d a t a . Other courts have found that printouts of “computer-stored” human-generated data are admissible under the business records exception to the hearsay rule if the electronic computer equipment is recognized as standard, the input is entered in the regular course of business reasonably close in time to the happening of the event recorded, and the foundation testimony e s t a b l i s h e s t h a t t h e s o u r c e o f i n f o r m a t i o n , a n d t h e m e t h o d a n d t i m e o f p r e p a r a t i o n i n d i c a t e i t s trustworthiness and justify its admission. 1 8

There is an emerging view, however, that “computer-generated” data simply are not hearsay. “Computer-generated” data results when keystrokes are the transaction. The truth or falsity of the keystrokes is not the issue; the issue is what the keystrokes were, or when they were made. The person making the keystrokes is not a declarant, because he is not making a s t a t e m e n t a b o u t t h e t r a n s a c t i o n , b u t i s p e r f o r m i n g t h e t r a n s a c t i o n i t s e l f . I f t h e c o m p u t e r r e c o r d s the keystrokes and produces a printout, it arguably is not hearsay. 1 9

A few recent decisions suggest that to admit “computer-generated” data, the proponent need only demonstrate that the recording device was accurate and operating properly when the evidence was generated.20 In People v. Holowko,21 for example, the court distinguished between “computer-generated” and “computer-stored” data. The Holowko court found that the printout of results of computerized telephone tracing equipment was not hearsay evidence because it was generated instantaneously as the telephone call was placed, without the assistance, observations, or reports from or by a human declarant. The court held that the admissibility of such records required only proof of the method of recording the data and the proper functioning of the recording device. The court, however, explained in dicta that the printouts of the “computer- stored” data should not be admitted into evidence because it could not be tested by cross- examination.

Morgan, Lewis & Bockius LLP


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