Admissibility of documents stored on optical imaging systems in legal proceedings

There continue to be questions on the subject of whether documents stored on optical imaging systems are admissible in court In particular there is concern that there hasn't been a test case on the admissibility of optical images. Such a case is unnecessary--optical images are admissible under current law.

There are two distinct legal issues with respect to optical images--regulatory compliance and admissibility in court--and they should not be confused. Regulatory agencies cannot dictate what types of evidence courts may deem acceptable (with the possible exception of quasi-judicial proceedings within the regulatory agency), and courts generally will not dictate to regulatory agencies what constitutes an acceptable form of recordkeeping for regulatory compliance. Organizations contemplating the use of optical imaging should be aware that scanning and destroying documents could, in some cases, be a regulatory violation, even though the optical images would be admissible in court.

THE RULES OF EVIDENCE

The Uniform Rules of Evidence have been adopted by the federal courts, as well as nearly every state. Those jurisdictions still relying on common law (the law comprised of the body of court decisions on a subject) or other rules operate in a similar fashion, since the Uniform Rules are a codification of common law For this article, I will use the Colorado Rules of Evidence (C.R.E.). Other versions may vary in minor ways.

There seems to be a common misperception about the rules of evidence and the cases construing them that there are types of evidence which have been approved by the courts, and that optical images must make it to this 'approved' list to be admissible. This is not so.

ATI relevant evidence is admissible, except as provided for by the Constitution of the United States, by the Constitution of the State of Colorado, or by other rules prescribed by the Supreme Court, or by the statutes of the State of Colorado. Evidence which is not relevant is not admissible.(1)

The Rules of Evidence, other court rules, statutes, and case law, operate to create an exclusionary list--everything relevant is admissible until specifically prohibited. A document stored on an imaging system meets the threshold relevance test stated above if it is germane to the dispute at hand, and therefore is potentially admissible. The question then is whether the law forbids the admission of optical images.

BUSINESS RECORDS AS EVIDENCE

Hearsay is:

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.(2)

A written document is a "statement," made outside of the courtroom, and is therefore hearsay. Hearsay is not admissible except as provided by these rules or by the civil and criminal rules applicable to the courts of Colorado or by any statutes of the State of Colorado.(3)

There are, however, a number of exceptions to the hearsay rule.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation. indicate a lack of trustworthiness...(italics added.)...(4)

This is the so-called "business records exception" of which many readers are undoubtedly aware. As regards optical images, there are several noteworthy aspects to this provision.

The first is that there are no prescribed forms or media for business records--a data compilation in any form can be a business record, so long as it meets the other requirements of the rule. For the purposes of the business records exception, an optical image is no different than any other data compilation, so long as it, too, meets the other requirements of the Rule.

The second aspect is that proof that the requirements have been met is made by means of "foundation" testimony from a witness (the "custodian or other qualified witness") who is employed or retained by the party seeking admission. There is no need to prove that the requirements have been met by extracting reluctant testimony from a hostile witness.

The third aspect is that, once the document has been established as a business record, the hearsay exception creates a presumption of reliability, and places the burden on the other party to prove it to be unreliable (The following are not excluded by the hearsay rule

:

... Records of regularly conducted activity ... unless the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness".) Courts are aware that businesses have compelling reasons to ensure that their recordkeeping systems are accurate and reliable:

R

ecords which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence.(5)

Whether or not the relevant prerequisites have been met is a factual question whose determination is within the discretion of the trial judge. Appellate courts will not disturb the judge's decision unless that discretion has been abused.(6) With optical images, as with other records, the proponent of the evidence must therefore persuade the trial judge that the records are part of a regular system of business records, and that the circumstances surrounding their creation and maintenance are trustworthy.

In most cases, this is a routine matter. Your lawyer puts your employee on the witness stand, and asks a series of routine, preplanned questions, the answers to which establish that the records in question are business records. In anticipation of an objection based upon alleged unreliability of the records system, an elaborate series of questions is also asked and answered which go into great detail about the reliability of the technology, the procedures and audits, and the other factors which demonstrate the reliability of the system. Written procedures and manuals which contain similar information may also be introduced, as well as testimony about industry standards and the system's conformance to them. All of this occurs before the other side gets to fire a shot. At the end of this testimony, your lawyer asks that the records be admitted as business records.

If the other party is going to object, now is the time. One such objection might be that you have failed to establish that the record was made in the regular course of business. If the court agreed, you would, in most cases, be given another opportunity to meet the claimed deficiency through further testimony. In the case of the vast majority of business records, and regardless of the technology involved, proof that the requirements of the business records exception have been met is accomplished with little or no trouble.(7)

The other lawyer could also request to voir dire (examine) the witness. Through this interrogation, the lawyer would probe any weakness in the system and seek to demonstrate that some aspect of the system is so unreliable as to justify exclusion of the evidence. If such evidence is brought forth, the objecting party moves to exclude the proffered evidence. If there is any law, such as a relevant statute or case, supporting exclusion, it would also be cited at this time.

There are three noteworthy aspects to this process. First, the other party will be trying to pry this evidence of unreliability out of your witness, not his witness. If the system really is reliable, and if your witness is properly prepared, this is likely to be a difficult task. Questions attempting to bring out weaknesses in the system will instead bring forth still more testimony about how reliable the system is. In critical, high stakes situations, the other side might bring in their own witnesses to counter your testimony (usually at a pretrial hearing on a motion to exclude), but in most cases, they will have to attempt to get their evidence about the unreliability of your records system out of the mouth of your witness.

Second, once you have established a record as a business record, you have done everything you need to do. "When the tendered evidence falls within a firmly rooted hearsay exception, its reliability can be inferred without more."(8) The record is presumed to be reliable. If the other side wants to keep it out, they must now prove that the record is unreliable. In order to do so, they will have to raise legitimate, substantial doubts as to the reliability of the system that produced it. A hypothetical objection ("Your honor, this record could conceivably have been altered or forged]") or an objection that the system is not absolutely 100% accurate (no system is) will not keep the records out. The reasons for this are obvious: If hypothetical objections can keep out evidence, nothing will ever get in. Every witness could be lying, every exhibit could be a fake, every document could be a forgery. Such allegations demand proof, not speculation. In most cases, the document is genuine and accurate, so there is no such proof. The objection thus fails.

In similar fashion, an objection that the recordkeeping technology or system in question has not been proven to be reliable will fail--your witnesses just finished proving its reliability through their testimony. If the opposing party does bring in their own witnesses, those witnesses must put forth credible evidence of real, not theoretical, flaws in the system in order to overcome the presumption of reliability. A properly designed system using reliable technology and conforming to industry standards will provide them with no such proof. As a result, the vast majority of all business records properly offered into evidence get in, regardless of the storage medium. This scenario applies to documents stored on an imaging system in the same way that it applies to other business records.

The third noteworthy aspect of this situation is that, when the time comes for the opponent of the optical images to cite some law supporting their exclusion, there will be none to cite. Quite the contrary, all applicable law is supportive of the admission of the images. Such an image will have been shown to be a business record, and so within the business records exception; the Rules allow admission of duplicates produced by any accurate technology (see following discussion); and a large body of case law supports the admission of records produced on computers and electronic data processing systems (see following discussion). The opponent is therefore reduced to citing the general principle of law that a court can exclude untrustworthy evidence. This is not a compelling argument when made in the absence of facts proving untrustworthiness.

OPTICAL IMAGES AS DUPLICATES

Claims might also be raised that an optical image is not the business record--it is merely a duplicate of the record, and somehow inadmissible on this account, or perhaps that optical images are not "approved" duplicates. A brief review of the Uniform Rules' provisions regarding duplicate records quickly dispels such a forlorn assertion.

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".(9)

The distinction between "original" and "duplicate" is thus already blurred. If an image is treated as the original, and so intended, the issue of admissibility of duplicates may never be reached.

A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. (italics added)(10)

And,

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.(11)

The only requirement for a duplicate produced by any technology is that the duplicate be an accurate reproduction of the original. As with the requirements of the business records exception, proof of that accuracy comes from the proponent's own witnesses. The burden then shifts to the other side to demonstrate inaccuracy.

Application of these provisions is straightforward and completely noncontroversial. Every jurisdiction in the United States routinely admits photocopies, photographs, microfilm and microfiche, blueprints, computer printouts, FAXs, and a variety of other duplicates (including, undoubtedly, optical images), commonly under the business records exception of Rule 803.

None of these techniques is inherently more reliable than optical imaging, and some, such as photocopiers, FAX machines and computers, share much of their technology with imaging. Even supposing that optical imaging is not covered by one of the enumerated techniques--and references to "the same matrix" and "electronic re-recording' make such a supposition dubious--the catch-all clause at the end allows any technique which accurately reproduces the original to produce a "duplicate". Further, some states' versions of the Rules explicitly enumerate optical imaging as an acceptable technology. Nor will courts impose additional limitations to such clear provisions:

Courts

also are bound by the rule that admissibility of evidence is controlled by statute, not judicial discretion.(12)

In other words, if the law allows admission of a certain type of evidence, a judge cannot overrule it and exclude the evidence based upon his or her own personal prejudices.

In sum, if the proponent of an optical image can demonstrate that the imaging system produces accurate duplicates, made in the regular course of business, the Rules provide a clear basis for its admission. The party seeking its exclusion from trial must seek other authority, and that authority is lacking.

PER SE EXCLUSION OF EVIDENCE

If a party could persuade a court that optical imaging is such a new or novel process that a full hearing (as distinguished from mere objections and voir dire during the trial) is required to determine its inherent trustworthiness, the court would hold a hearing, receive evidence, such as expert opinions, and rule on the question of admissibility. If the court filed the records inadmissible per se, and this ruling were upheld on appeal, optical images would then be inadmissible in that jurisdiction. Such an appellate decision might also be used by courts in other jurisdictions as persuasive authority in making their own rulings.

Whether the opponent could even get such a hearing is a highly doubtful proposition--optical imaging is not, at this point, a very new or novel technology. Even the very old computer record cases, decided when electronic data storage was still relatively novel, focus on the mundane issue of whether' the requirements of the business records exception have been met. That is not an issue which requires a full hearing on the details of the technology involved. Future courts, as well, are likely to conclude that the business records exception is the appropriate standard for determining admissibility, and the trial itself the proper forum to raise objections.

However, even if such a hearing were held, and the court persuaded to go beyond the business records exception in making its determination, it is most unlikely that a court could ever be persuaded to conclude that a blanket exclusion of optical images was appropriate.

One legal standard commonly used by courts when highly technical evidence is at issue is the Frye test,(1)3 generally regarded as the most restrictive of the standards for scientific and technological evidence. Under Frye, evidence produced by a novel scientific process or technique is not admissible unless the process or technique is "sufficiently established to have gained general acceptance in the particular field in which it belongs."(14) Other potentially applicable standards, such as the Rule 703 standard,(15) allow in such evidence if it would be helpful to the judge or jury in making their determinations (which, in practice, makes it easier to get in such evidence than under Frye), and relegate questions such as general acceptance to the determination of how much weight to give the evidence. Comparison of optical imaging with evidence which is per se inadmissible, and bearing the Frye standard in mind, reveals why it is highly unlikely that optical imaging will ever be ruled inadmissible per se.

In Colorado, polygraph test results are deemed so inherently unreliable as to justify blanket exclusion from trial.(16) Consider, however, the huge differences between polygraph evidence and optical imaging. Polygraphs have never received anything approaching universal acceptance--even today, more than 50 years after their introduction,(17) the scientific basis for their use as instruments of truth is hotly debated, and completely rejected by a large and highly qualified segment of the scientific community. Further, the results of the test are subject to highly subjective interpretation by the (potentially untrained) operator, leading to the potential of wildly varying results depending upon the operator's training and experience. Both of these factors were considered critical by the court in People v. Anderson, the leading Colorado case. Other types of evidence subject to blanket exclusion, such as hypnotically refreshed testimony,(18) are equally subjective and lacking in scientific basis, and are therefore subject to similar objections.

In contrast to polygraphs and hypnosis, optical storage technology has a firm, noncontroversial scientific basis. Further, it has received universal acceptance--it has evolved into a commonplace and inexpensive consumer technology available to the general public through retail outlets and mail order houses. Business has also widely embraced the use of this technology for information storage, but with the addition of much more highly developed and elaborate systems of safeguards.

Finally, there is nothing subjective or controversial about the results--optical imaging is straightforward and mature engineering. In stark contrast to polygraphs and hypnosis, there is no study, no expert opinion, no professional literature at all, available to the opponent to support the contention that the technology is inherently incapable of producing reliable results.(19)

THE LACK OF A TEST CASE

The lack of a prior test case on optical imaging is, if anything, an aid to admissibility. Bear in mind that all evidence is admissible unless prohibited. A definitive test case would be one which resulted in a per se exclusion of optical images. In contrast, there will never be a case which holds that optical images must be admitted--in each case, the burden of showing that the requirements of the Rules have been met is upon the party seeking admission, and the court may always deny admission if this burden is not met. Any case approving the admission of optical images would hold only that the requirements of admissibility (such as, for example, the business records exception) had been met in that case and under those particular circumstances, or that admission of optical images was not absolutely forbidden.

The party seeking admission of an optical image needs no such case--images are already admissible if the requirements of the Rules are met. And, so long as no case prohibiting admission of optical images is decided, parties opposing admission can point to no legal authority whatsoever for the proposition that optical images are inadmissible. To the contrary, they face the plain language of the Rules of Evidence and a very substantial body of law on the admissibility of computer records which they must somehow distinguish away.

PRIOR CASES HAVE DECIDED THIS ISSUE

An optical imaging system comprises four basic components: a computer, a scanner, an optical disk drive and disk, and software. Computers and software have a long legal history--cases challenging the admission of records stored on computer date from the 1960s, and scores of cases hold that computer evidence is admissible. Older cases often imposed requirements that there be foundation testimony concerning the reliability of the software and hardware, or that the testimony shows that this was standard equipment used according to instructions,(20) but newer cases have dispensed with even these requirements and routinely accept the reliability of computer generated records, with little or no testimony of a technical nature.(21) Today it is unlikely that a party will even raise an objection to evidence based solely upon the fact that it was stored on a computer, except perhaps out of sheer desperation.

Further, even in those (generally quite old) cases where computer evidence was excluded, this was invariably due to a lack of adequate foundation testimony about system reliability or procedures, a matter entirely within the control of the party seeking admission of the records. Inadequate foundation as to the reliability of the computer system should never be grounds for denial of admission of optical images in a future case.

The same cases and considerations apply to software. So long as the proponent of the evidence can produce credible testimony that the software is reliable and used properly, there need never be a question about the admissibility of records created or stored using it (unless, of course, there is a bug in it which really does make it unreliable, and the other side can prove it).

This leaves only the disk and drive and scanner as "unproven". In both cases, the issue is the same as in the case of the computer and the software--is it reliable and accurate, and can this be proven through testimony? If so, there is no basis for excluding records created and stored using either a scanner or optical disk drive. The computer cases have repeatedly approved of properly managed electronic data storage, and optical drives are no different than magnetic drives in this respect--images can be stored on magnetic as well as optical media, and standard digital data storage can be done on optical disks. Documents scanned and stored on magnetic media are undoubtedly admissible unless a serious question is raised about their trustworthiness. Thus, there is absolutely no basis for a court to exclude images stored on optical disks based solely upon the fact that they are digital images.

As for the reliability of the medium itself, it is worth comparing the reliability and durability of optical disks to that of magnetic computer media. Digital disks are quite durable; they survive drops, scratches, heat and cold, and have quite long service lives, as anyone with an audio disk player knows. In contrast, everyone who uses magnetic disks knows how fragile they are, and can relate horror stories about disk crashes that damaged or destroyed critical data. Further, floppy disks last, at best, a year or two with heavy use. Yet, the fragility of magnetic media is not a basis for excluding evidence stored on them. Optical images are not likely to be ruled inadmissible on grounds of inadequate reliability or durability.

Scanners are equally commonplace and equally reliable--the scanner on a optical imaging system is much the same as the scanner on a photocopier or FAX machine. A challenge to a photocopied or FAXed document based upon a claim that scanners are unproven borders on the frivolous--there is absolutely no doubt about the admissibility of such documents. Such a claim would surely fail in the absence of proof of unreliability.

Finally, preapproval by the courts for every technology or new application is not required, and no one really believes that it is. For example, it is unlikely that either floppy disks or magnetic hard disks have ever been explicitly approved of as a reliable storage medium in most jurisdictions--most of the computer admissibility cases predate these technologies. Taken as a literal acceptance of a particular technology, those early cases probably pass judgment only on tapes and punch cards, since those were all that was in existence at the time. Later cases take computers for granted, and so do not bother to pass on the merits of magnetic disks. Yet no furor is heard about the lack of a test case on magnetic disks. Users of 486 CPUs, DOS or Windows (all highly complex systems, subject to the same sorts of objections as optical disk systems) face the same issue. None of these technologies has ever received explicit authorization from the courts.

Notwithstanding this lack of explicit authority, no one doubts the admissibility of records produced on these systems--nor should they. The decided cases do not pass judgment on a specific type of processor chip, version of software, or generation of hard drive. Instead, the courts focus on general issues of commercial reliance and procedural safeguards to ensure the reliability of the records system and hardware and pretty much ignore details of the hardware. There is no reason at all to believe that optical imaging will be treated in a fundamentally different manner.

This approach is not likely to change in the future. When determining the reliability of such technology, courts look to the opinions and practices of those for whom such reliability is critical--businesses, scientists, and other expert users--for such evidence. When these users place a great deal of reliance on a technology, the courts will do so as well.

With an optical imaging system, as with any other well designed and managed records system, such things as reliance and reliability can easily be demonstrated. Thus, neither optical images nor records from any other type of data storage can be kept out of court if the system is properly designed and the proper foundation testimony put forth.

WORM V. REWRITABLE OPTICAL DISK

The debate over the supposed superior legal admissibility of WORM technology over other optical imaging technologies is based upon a misunderstanding of evidence law. Physical resistance to alteration is not now, and never has been, a requirement for admissible evidence. If it were, courts would prohibit photocopies, documents produced on word processors, and computer output of any kind, and instead demand typewritten or handwritten documents, or better yet, documents engraved on stainless steel or granite. This is not the case--physical resistance to alteration is rarely even discussed in connection with the admissibility of documents. Notwithstanding the ease with which photocopies, word processor documents, and computer output can be altered or forged, all are not only admissible, but are routinely admitted in courts every day.

Granite carvings are admissible, to be sure, but no more so than computer printouts, and in most cases would neither be entitled to nor given any more weight or credibility than the computer printout. The Rules themselves do not even mention resistance to alteration as an indicia of reliability, nor do many cases, and for good reason: virtually all of the common kinds of evidence, including oral testimony, physical exhibits, paper documents and scientific tests, are subject to the possibility of fraud, forgery or mistake.

If courts are to admit these kinds of evidence, they must look to other indicia of reliability. One such factor is the "regular course of business" requirement delineated by the business records exception to the hearsay rule. Others include the existence of audit procedures, quality control and quality assurance procedures, adequate system security, proper training for staff, and adequate supervision and control of critical operations. Physical resistance to alteration is only one (and not an important one, at that) among many such factors.

The real indicia of reliability and accuracy of any records management system--paper, microfilm, or electronic--are good procedures, training and audits. Decided cases have repeatedly demonstrated that care in these areas will ensure admission of business records into evidence. Few, if any, cases have found it necessary to go beyond them to questions of physical invulnerability when determining the admissibility of business records.

FOOTNOTES

1. C.R.E. 402.

2. C.R.E. 801(c).

3. C.R.E. 802.

4. C.R.E. 803.

5. Monarch Federal Savings and Loan Assn. v. Genser, 383 A.2d 475, 480 (N.J. Super. 1977).

6. See, e.g. United States v. Vela, 673 F.2d 86 (5th Cir. 1982).

7. Business records are commonly admitted by stipulation of the parties, thus negating even the formality of going through the process being described.

8. People in Interest of W.C.L., 650 P. 2d 1302 (Colo. Ct. App. 1982).

9. C.R.E. 1001 (3).

10. C.R.E. 1001 (4

11. C.R.E. 1003.

12. State u. Ford, 501 N.W. 2d 318 (Neb. 1993).

13. So-called after the test set forth in Frye v. United States, 29S F. Supp. 1013 (D.C. 1923).

14. Id. at 1014.

15. Derived from Rule 703 of the Uniform Rules, concerning the testimony of expert witnesses.

16. See People v. Anderson, 637 P. 2d 354 (Colo. 1981

17. Frye v. United States was a polygraph case.

18. See, e.g., People v. Quintanar, 659 P. 2d 710 (Colo. Ct. App. 1982).

19. Quite the contrary, the accuracy reported for imaging is on the order of one error per 1,000,000,000,000 bits, or about 1 in 125,000,000,000 characters--vastly superior to most other data transcription methods. See D. Avedon, Introduction to Electronic Image Management, 1991 AIIM Conference Presentations, p. 32. For comparison purposes, this article contains less than 25,000 characters, about 200,000 bits.

20. See e.g. People v. Boyd, 384 N.E. 2d 414 (Ill. Ct. App. 1987); Monarch Savings and Loan Assn. v. Genser, 383 A.2d 475 (1977).

21. See State v. Swed, 604 A2d 978 (1992); State v. Ford, 501 N.W. 2d 318 (Neb. 1993)

Copyright Association of Records Managers and Administrators Inc. Oct 1995
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