Older Uniform Acts

1994 Electronic Evidence: Computer Produced Records in Court Proceedings

APPENDIX B - Statutes on Electronic Records

[137]The Civil Evidence Act, 1968 (U.K. 1968 c.64)

Section 5. Admissibility of statements produced by computers

(1) In any civil proceedings a statement contained in a document produced by a computer shall, subject to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if it is shown that the conditions mentioned in subsection (2) below are satisfied in relation to the statement and computer in question.

(2) The said conditions are--

(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any body, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

[138]South Australia Evidence Act, 1929 - 1976

Section 59a. In this Part, unless the contrary appears-

"computer" means a device that is by electronic, electro-mechanical, mechanical or other means capable of recording and processing data according to mathematical and logical rules and of reproducing that data or mathematical or logical consequences thereof;

"computer output" or "output" means a statement or representation (whether in written, *pictoral, graphical or other form) purporting to be a statement or representation of fact--

(a) produced by a computer; or

(b) accurately translated from a statement or representation so produced:

"data" means a statement or representation of fact that has been transcribed by methods, the accuracy of which is verifiable, into the form appropriate to the computer into which it is, or is to be, introduced.

Section 59b (1) Subject to this section, computer output shall be admissible as evidence in any civil proceedings.

(2) The court must be satisfied-

(a) that the computer is correctly programmed and regularly used to produced output of the same kind as that tendered in evidence pursuant to this section;

(b) that the data from which the output by the computer is systematically prepared upon the basis of information that would normally be acceptable in a court of law as evidence of the statements or representations contained in or constituted by the output;

(c) that, in the case of the output tendered in evidence, there is, upon the evidence before the court, no reasonable cause to suspect any departure from the system, or any error in the preparation of the data;

(d) that the computer has not, during a period extending from the time of the introduction of the data to that of the production of the output, been subject to a malfunction that might reasonably be expected to affect the accuracy of the output;

(e) that during that period there have been no alterations to the mechanisms or processes of the computer that might reasonably be expected adversely to affect the accuracy of the output;

(f) that records have been kept by a responsible person in charge of the computer of alterations to the mechanism and processes of the computer during that period; and

(g) that there is no reasonable cause to believe that the accuracy or validity of the output has been adversely affected by the use of any improper process or procedure or by inadequate safeguards in the use of the computer.

[139][1977] Washington Law Quarterly 59 at 91

A computer printout recording a business act, event, or transaction shall be admissible into evidence to prove the truth of the matters asserted therein provided that the offering party shows:

(1) that the input procedures conform to standard practices in the industry; and, the entries are made in the regular course of business, and

(2) that he relied on the data base in making a business decision(s), within a reasonably short period of time before or after producing the printout sought to be introduced at trial, and

(3) by expert testimony that the processing program reliably and accurately processes the data in the data base.

[140]South African Computer Evidence Act, 1983 (Government Gazette, May 11, 1983; No. 8100 No.2, Act No. 57, 1983)

The preamble to the Act states: "To provide for the admissibility in civil proceedings of evidence generated by computers; and for matters connected therewith". Its provisions allow for the admissibility of "authenticated computer printouts", which is a computer printout accompanied by an "authenticating affidavit". The authenticating affidavit is to be deposed to by some person who is qualified to give the testimony it contains by reason of

(a) knowledge and experience of computers and of the particular system used by the computer in question;

(b) examination of all relevant records and facts concerning the operation of the computer and the data and instructions supplied to it.

The authenticating affidavit is to contain the following pieces of foundation evidence in relation to the issue of admissibility:

1. A description in general terms of the nature, extent and sources of the data and instructions supplied to the computer, and the purpose and effect of its processing by the computer;

2. A certification that the computer was correctly and completely supplied with data and instructions appropriate to and sufficient for the purpose for which the information recorded in the computer printout was produced;

3. A certification that the computer was unaffected in its operation by any malfunction, interference, disturbance or interruption that might have had a bearing on such information or its reliability;

4. A certification that no reason exists to doubt the truth or reliability of any information recorded in or result reflected by the computer printout;

5. A verification of the records and facts examined by the deponent to the authenticating affidavit in order to qualify himself for the testimony it contains.

[141]Fenwick and Davidson, "Use of Computerized Business Records as Evidence", (1978), 19 Jurimetrics Journal 9.

A custodian of computer-kept records should be prepared to testify to:

(1) the reliability of the data processing equipment used to keep the records and produce the printout;

(2) the manner in which the basic data was initially entered into the system (e.g. cards, teletype, etc.);

(3) that the data was so entered in the regular course of business;

(4) that the data was entered within a reasonable time after the events recorded by persons having personal knowledge of the events;

(5) the measures taken to insure the accuracy of the data as entered;

(6) the method of storing the data (e.g. magnetic tape) and the safety precautions taken to prevent loss of the data while in storage;

(7) the reliability of the computer programs and formulas used to process the data;

(8) the measures taken to verify the proper operation and accuracy of these programs and formulas;

(9) the time and mode of preparation of the printouts.

[142]The Police and Criminal Evidence Act, 1984 (U.K.) (as amended by the Criminal Justice Act 1988.)

69. (1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown -

(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer;

(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents; and

(c) that any relevant conditions specified in rules of court under subsection (2) below are satisfied.

(2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required.

PART 11PROVISIONS SUPPLEMENTARY TO SECTION 69

8. In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above, a certificate

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters mentioned in subsection (1) of section 69 above; and

(d) purporting to be signed by a person occupying a responsible position in relation to the operation of the computer,

shall be evidence of anything stated in it; and for the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given of anything of which evidence could be given by a certificate under that paragraph.

10. Any person who in a certificate tendered under paragraph 8 above in a magistrates' court, the Crown Court or the Court of Appeal makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable

(a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum (as defined in section 14 of the Criminal Justice Act 1982) or to both.

11. In estimating the weight, if any to be attached to a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular -

(a) to the question whether or not the information which the information contained in the statement reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied to it, contemporaneously with the occurrence or existence of the facts dealt with in that information; and

(b) to the question whether or not any person concerned with the supply of information to that computer, or with the operation of that computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent the facts.

12. For the purposes of paragraph 11 above information shall be taken to be supplied to a computer whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment.

In addition to s. 69, ss. 23 and 24 of the Criminal Justice Act 1988 would apply if the computer record is tendered for a hearsay purpose, i.e. the truth of its contents:

23. (1) Subject

(a) to subsection (4) below;

(b) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1968 (evidence given orally at original trial to be given orally at retrial); and

(c) to section 69 of the Police and Criminal Evidence Act 1984 (evidence of computer records),

a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if-

(i) the requirements of one of the paragraphs of subsection (2) below are satisfied; or

(ii) the requirements of subsection (3) below are satisfied.

(2) The requirements mentioned in subsection (1)(i) above are-

(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

(b) that-

(i) the person who made the statement is outside the United Kingdom; and

(ii) it is not reasonably practicable to secure his attendance; or

(c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.

(3) The requirements mentioned in subsection (1)(ii) above are-

(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and

(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.

(4) Subsection (1) above does not render admissible a confession made by an accused person that would not be admissible under section 76 of the Police and Criminal Evidence Act 1984.

24. (1) Subject-

(a) to subsections (3) and (4) below;

(b) to paragraph IA of Schedule 2 of the Criminal Appeal Act 1968; and

(c) to section 69 of the Police and Criminal Evidence Act 1984, a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied-

(i) the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and

(ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

(2) Subsection (1) above applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it-

(a) in the course of a trade, business, profession or other occupation; or

(b) as the holder of a paid or unpaid office.

(3) Subsection (1) above does not render admissible a confession made by an accused person that would not be admissible under section 76 of the Police and Criminal Evidence Act 1984.

(4) A statement prepared otherwise than in accordance with section 29 below or an order under paragraph 6 of schedule 13 of this Act or under section 30 or 31 below for the purposes-

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation, shall not be admissible by virtue of subsection (1) above unless

(i) the requirements of one of the paragraphs of subsection (2) of section 23 above are satisfied; or

(ii) the requirements of subsection (3) of that section are satisfied; or

(iii) the person who made the statement cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement.

[143]Federal Rules of Evidence (U.S.A. 1975)

Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial

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

(6) Records of regularly conducted activity.

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 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 information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Rule 1001 Definitions

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writing" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

(3) Original. 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".

(4) Duplicate. 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 re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

Rule 1003. Admissibility of Duplicates

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.

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if-

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent.

At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

[144] Before the Federal Rules of Evidence were enacted, the following often-quoted set of guidelines for the admissibility of computer-produced records was produced in King v. ex rel Murdock Acceptance Corp, 222 So.2d. 393 at 398, (1969) (Miss. Sup. Ct) -

1. the electronic computing equipment is recognized as standard equipment;

2. the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded; and

3. the foundation testimony satisfies the court that the source of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.

[145] In 1977 more detailed requirements came from Monarch Federal Savings and Loan Association v. Genser, 383 A.2d 475 at 487-88, 1977 (N.J.Superior Ct, Ch. Div.)

1. the competency of the computer operators;

2. the type of computer used and its acceptance in the field as standard and efficient equipment;

3. the procedure for the input and out of information, including controls, tests, and checks for accuracy and reliability;

4. the mechanical operations of the machine; and

5. the meaning and identity of the records themselves.

[146] More recently commentators have stated that less emphasis should be placed on the standard nature of the equipment used. For example:

In fact, computer science has developed to the extent that courts can and should place less emphasis on the hardware. Whether a machine is "standard" is no longer the issue. Indeed, Illinois courts presently take judicial notice of the reliability of computerized machines. The trend in Illinois clearly indicates a shift in the burden to show the unreliability of a computer system. Greater emphasis, however, must be placed not only on the trustworthiness element of business practice, but also on the accuracy of the data input and the software as foundational requirements. The primary focus of the courts in evaluating a computer generated record should be the software programs that produced the record and the input procedures to show the transaction. Errors in programs ("bugs") or in data input can lead to massive error and insurmountable problems that are almost impossible to detect.

(Lynch and Brenson, "Computer Generated Evidence: The Impact of Computer Technology on the Traditional Rules of Evidence", (1989) 20 Loyola University Law Jl 919, at 929.)

[147] A more recent review of case law suggests the following requirements:

A foundation for the admission of a computer printout should include, through the testimony of the custodian of the records on which the printout is based, or through the testimony of some other person who is familiar with the manner in which the records were processed and maintained, proof of

- the reliability of the computer equipment used to keep the records and produce the printout.

- the manner in which the basic data was initially entered into the computerized record-keeping system.

- the entrance of the data in the regular course of business.

- the entrance of the data within a reasonable time after the events recorded by persons having personal knowledge of the events.

- the measures taken to ensure the accuracy of the data entered.

- the method of storing the data and the precautions taken to prevent its loss while in storage.

- the reliability of the computer programs used to process the data.

- the measures taken to verify the accuracy of the programs.

- the time and mode of preparation of the printout.

In opposing the admission into evidence of computerized private business records, counsel should draw the court's attention to any omissions from, or weaknesses in, the suggested list of foundation proofs. Counsel is cautioned to be certain to raise at trial any objection to the foundation for admission, whether the objection is based upon the proponent's failure to show that the record was in fact a business record, or whether it is based upon the proponent's failure to establish the reliability of the computer and the procedures by which the data was entered and retrieved.

(Zupanec, D. "Admissibility of Computerized Private Business Records", (1990), 7 A.L.R. 4th 8 at 17.)

[148]Civil Code of Quebec

SECTION VI COMPUTERIZED RECORDS

2837. Where the data respecting a juridical act are entered on a computer system, the document reproducing them makes proof of the content of the act if it is intelligible and if its reliability is sufficiently guaranteed.

To assess the quality of the document, the court shall take into account the circumstances under which the data were entered and the document was reproduced.

2838. The reliability of the entry of the data of a juridical act on a computer system is presumed to be sufficiently guaranteed where it is carried out systematically and without gaps and the computerized data are protected against alterations. The same presumption is made in favour of third persons where the data were entered by an enterprise.

2839. A document which produces the data of a computerized juridical act may be contested on any grounds.

2870. The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of fact is, in particular, presumed to be sufficiently guaranteed.

[149] Therefore, these provisions require proof of these specific factors: intelligibility, reliability, the circumstances under which the data were entered, the circumstances under which the document was reproduced, systematic entry of data, and protection of data against alterations. Also "the ordinary course of business of an enterprise" is applied to create a presumption in regard to the reliability of documents other than juridical acts.

[150]United Nations Commission on International Trade Law

DRAFT Model Law on Electronic Records

[U.N. documents A/CN.9/WG.IV/WP.60 and A/CN.9/390]

Article 8: Originals

(1) Where a rule of law requires information to be presented in the form of an original record, or provides for certain consequences if it is not, that requirement shall be satisfied in relation to a data record containing the requisite information if:

(a) that information is displayed to the person to whom it is to be presented; and

(b) there exists a reliable assurance as to the integrity of the information between the time the originator first composed the information in its final form, as a data record or as a record of any other kind, and the time that the information is displayed.

(2) Where any question is raised as to whether paragraph (1)(b) is satisfied:

(a) the criteria for assessing integrity are whether the information has remained complete and, apart from the addition of any endorsement, unaltered; and

(b) the standard of reliability required is to be assessed in the light of the purpose for which the relevant record was made and all the circumstances.

Article 9: Evidence

(1) In any legal proceeding, nothing in the application of the rules of evidence shall apply so as to prevent the admission of a data record in evidence

(a) solely on the grounds that it is a data record; or

(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, solely on the grounds that it is not an original document.

(2) Information presented in the form of a data record shall be given due evidential weight. In assessing the evidential weight of a data record, regard shall be had to the reliability of the manner in which the data record was created, stored or communicated, and where relevant, the reliability of the manner in which the information was authenticated.


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