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Computer generated vs computer stored evidence

Discussion of legislation relating to computer forensics.
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Audio
Senior Member
 

Computer generated vs computer stored evidence

Post Posted: Aug 16, 08 05:37

In the U.S. Computer Records and the Federal Rules of Evidence from 2001 it was proposed that not all computer records contain hearsay. Computer stored records (email, documents, chat logs, etc.) contain human statements and are therefore probably hearsay. However, computer generated records (log files, packet captures, ATM receipts, etc) don't contain human statements, and are therefore not hearsay.

On the other hand, I've read that because a human (programmer) wrote the program, that it could be argued that the output from the program does contain human statements. How common is it for courts now to recognize the difference between computer generated and stored records? Has there been a precedence set?  
 
  

LarryDaniel
Senior Member
 

Re: Computer generated vs computer stored evidence

Post Posted: Sep 16, 08 08:39

Considering that human generated records are the primary form of documentary evidence in a case, I am not sure they are considered hearsay by default. It is up to the judge to determine what will be allowed to be presented to a jury.

Relevance, prejudiciary remarks, and other things come into play here, more than just the FROE. The Rules of Evidence are a gudeline to establish a basis for making those determinations, and is not the determination itself.

So far I have not seen a case where a differentiation has been made on that technical a level. There may be some case law out there, however.
_________________
Larry E. Daniel
DFCP, EnCE, BCE, ACE, AME, CTNS , CTA, CWA
Guardian Digital Forensics
"An Envista Forensics Company" 
 

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