Business records aren’t just text documents—they often include videos and other images that are digitally stored. Getting printouts of these images into evidence is just like any other business record evidence, but showing authenticity may require some tech knowledge.
The good news is that a printout of a video or digital image is presumed to be an accurate representation of the images it purports to represent. Evid C §1553(a). In fact, foundational testimony to show the reliability of computer-generated photographs isn’t required to admit them under the business record hearsay exception. People v Peyton (2014) 229 CA4th 1063, 1076.
But the bad news is that this presumption only holds if the other side doesn’t present evidence of the printout’s inaccuracy or unreliability. If that happens, you’ll have to prove by a preponderance of the evidence that it’s an accurate representation of the existence and content of the images it purports to represent. Evid C §1553(a).
As many of us know from our use of Photoshop and other software to tweak digital images, technology has made it increasingly difficult to determine authentic from modified images. And only an authentic image may be considered a business record.
To be considered an authentic image, the proponent must show that
- the stored image is an authentic representation of the document or photograph it purports to be and, if necessary, that a printout of it accurately reflects the digitally stored information; and
- the proffered image satisfies the requirements of a business record.
Certain aspects of making these showings are likely to overlap. Here’s an example:
A plaintiff proffers an image purporting to be a printed copy of an electronic memorandum of a telephone call from a defendant who ordered 100 widgets at $20 each.
The plaintiff’s employee can testify that he or she customarily receives telephone orders and, although the employee doesn’t recall that particular order, the employee knows that he or she customarily keys orders into the company’s computer while speaking to the customer, and thus believes that is how this particular electronic memorandum was generated.
If the defendant denies ever making that order, the evidentiary problems are numerous. Case law is just beginning to address these issues in our era of digital storage coupled with the ease of modifying digital material. See People v Goldsmith (2014) 59 C4th 258.
If you find yourself facing this situation, you’ll need to get up to speed on the technology. Specifically, you’ll need to
- know the particular data storage system in question and the capability of that system to enable modifications, and
- understand how those modifications may be later detected to determine the authenticity of a particular document.
Introducing printouts of digitized business records doesn’t require learning new law, but it does require learning about the technology involved. Luddites beware!
For guidance on all aspects of introducing business records into evidence, turn to CEB’s Effective Introduction of Evidence in California, chap 13. On admissibility of electronic and social media evidence, check out chap 54.
Other CEBblog™ posts you may find useful:
- 9 Steps to Getting Business Records into Evidence
- From Website into Evidence
- How Do You Get Text Messages into Evidence: Authenticate, Authenticate, Authenticate
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Filed under: Evidence, Legal Topics, Litigation Strategy, Trial Strategy | Tagged: admissibility, admitting evidence at trial, authenticity, business records exception, electronic evidence, hearsay, trial attorney, trial evidence |