By John Armstrong
Three areas of law affect insurance claims. They are (1) substantive law, which creates the legal right to make a claim such as creating the legal elements necessary to make a valid claim; (2) procedural law, which provides rules regarding how and when a claim must be be lawfully made; and finally (3) evidence law, which provides rules regarding how one must prove (or disprove) a claim or a defense.
A recent problem in evidence law has been whether computer-generated evidence may be admissible in court. Computer-generated evidence is often attacked for lacking foundation, that is, that the computer-generated information is not what it purports to be. If this attack fails, it is often attacked as inadmissible hearsay in that the computer record “an out-of-court statement offered to prove the truth of the matter asserted.”
A recent criminal infraction case made its way up from the California trial court’s appellate division to the District Court of Appeal addressing these issues. The Goldsmith court held that computer-created evidence is presumed admissible.
The holding is important because it has implications far beyond nailing red light runners who are caught on camera, which was what the case was about.
In Goldsmith, the defense argued that the computer-generated photos and video showing the car running the red light was inadmissible because there was no evidence that computer equipment used to capture the photos and videos were accurate or reliable–an attack on the foundational requirements to have evidence admitted. The court agreed that Evidence Code, § 1401(a) required authentication of photos or video before they may be received in evidence, but found that merely required the party offering the evidence to show that the photo or video is what it purported to be or the establishment of such facts by any other means provided by law as per Evidence Code, § 1400(b).
Evidence Code, §§ 1552 and 1552 establish a legal presumption that printed representations of computer information and of images stored on a video or digital medium are representations of the computer information and images that they purport to represent. Based on this, the court concluded that the images and information, such as the date, time, and location of the violation and how long the light had been red when each photo was taken and imprinted on the photographs were presumed to accurately represent the digital data in the computer. Thus, the court concluded that Evidence Code, § 604 required the trier of fact to assume the existence of these presumed facts.
That the images were accurate depictions of the data stored on the computer did not end the inquiry. To be admissible, the evidence still had to be accurate and reliable. As to this issue, the appellate court deferred to the California Supreme Court’s holding in People v. Martinez (2000) 22 Cal.4th 106, at 111-112, 119-120, and 132. In Martinez, the Supreme Court held that testimony regarding the acceptability, accuracy, maintenance, and reliability of computer hardware and software was not a prerequisite for the admission of data stored on a computer.
In substance, the Supreme Court in Martinez and the appellate court in People v. Goldsmith (2012), held that California courts presume that computer-generated data that is retrieved from a computer is accurate and reliable. This presumption could be rebutted however through cross-examination. Note that the Goldsmith court found that this presumption would not apply to data inputted by humans. It would be limited to situations where the computer were set to automatically record the evidence without human intervention.
Where the data automatically records the evidence, the evidence is presumed admissible. The party opposing such evidence must prove to the trial judge that the evidence is authentic authenticity, accuracy, and reliability, and usually trial courts will let this evidence and then allow it to be attacked by cross-examination, etc., i.e., these factors go to the weight of the evidence as opposed to its admissibility.
Next, the Goldsmith dealt with the hearsay problem, namely, that the computer-generated photos and video were offered to prove the matter asserted, namely, that Goldsmith ran the red light. The Goldsmith court found no hearsay problem by finding that the computer-generated data and the data printed on the photographs by the computer did not fall within California’s definition of hearsay (Evid. Code, § 1200), since the purported “statements” were not made by a “person” based on the California Evidence Code’s definition of what a “person” is. Instead, the court viewed the computer-generated information as “demonstrative evidence,” which is “not hearsay.”
The point? Let’s say a business automatically stores and records information on its computers. Goldsmith may require that this evidence is admitted, leaving the opponent of the evidence to attack on only how credit to give this evidence, as long as the data is not manipulated by or entered by people.
Imagine the possibilities. If an insured’s business tracks information about employees automatically, this computer-generated data is going to be admitted into evidence for better or worse, as long as it is relevant to some issue at trial. Trial counsel will only be able to attack the data’s credibility, not its admissibility. This will affect the settlement value of a claim, summary judgment/adjudication motions, settlement, and trial outcomes.
In sum, Goldsmith teaches that courts are catching up on technological advances. They are thus reluctant to waste valuable trial time arguing over why computer-generated information is reliable and accurate absent compelling proof in a particular case. The best way to avoid the evidentiary presumptions of admissibility would be to show that the data was entered by a person or likely was manipulated by a person entering or retrieving the data. Absent such proof of tampering, courts are going to find that computer-generated and stored information is admissible because it is automated and not subject to manipulation by people. Trial counsel will be limited to attacking the relevance of the evidence and its credibility. Goldsmith signals the end to most attacks on such evidence’s admissibility in the first instance, which is an issue of law subject to the trial court’s broad discretion.
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