People v. Nazary is an appeal from an embezzlement conviction. Part of the evidence offered against the Defendant included computer generated printouts (receipts). The Defendant opposed the computer generated evidence as hearsay, because the receipts were “offered for its truth to establish that he had stolen money…” Nazary, at *52-53.
This raises the computer age-old metaphysical issues of whether a computer is a “person” who can make a statement. To the eternal dismay of science fiction fans, the Court of Appeal did not once invoke Hal 9000 or reference the Outer Limits “I, Robot” trial.
The Court of Appeals did, however, review the California Rules of Evidence.
California Evidence Code 1200(a) defines Hearsay as follows:
“[E]vidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”;
Nazary, at *53.
A “statement” is defined under California Evidence Code section 225, as follows:
“(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression”;
Nazary, at *53.
A “person” is defined under California Evidence Code section 175 as “a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” Nazary, at *53.
In the words of the Court of Appeal, the California Evidence code “does not contemplate that a machine can make a statement.” Nazary, at *53. However, the witnesses who described the computer generated reports, plus how the computer generated the reports, were subject to examination for the jury. Nazary, at *54-55.
As the Court of Appeal explained, the admissibility issues with the computer generated reports were foundational. The issue was whether the computer was operated correctly or possible data errors. These issues could be addressed by the cross-examination of the expert who used the computer system. Nazary, at *54.
The Court of Appeals found the receipts were machine generated and thus not hearsay. Nazary, at *54-55.
The “Hearsay Rule” requires “testimonial assertions shall be subjected to the test of cross-examination.” Nazary, at *55. In the words of the Court, there was “no possible scenario” where the computer system could have been cross-examined. Nazary, at *55.
However, those who used the computer system to create the receipts were subject to cross-examination. Nazary, at *55. The evidence of machine error were presented for the jury, which was all that was required under California law. Id.
Bow Tie Thoughts
Computers do not take an oath to tell the truth and testify in court. One day, we might live in that science fiction world. Given that one can fly across the United States with an Internet connection in 5 hours is something that would have been science fiction to someone 90 years ago, do not be surprise if our grandchildren live in a world where a computer can testify as to how data was generated.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.