Are photos and data from a red light camera hearsay? The answer is “no” according to the Court of Appeal in People v Goldsmith and conflicts with People v. Borzakian, discussed on the blog Developments in California Trial Practice.
Goldsmith also addressed whether the admission of computer-generated photographs and a video of the traffic violation were unsupported by evidence that the computer operated properly. People v. Goldsmith, 203 Cal. App. 4th 1515, 1518 (Cal. App. 2d Dist. 2012).
The California Supreme Court has held that that “our courts have refused to require, as a prerequisite to admission of computer records, testimony on the ‘acceptability, accuracy, maintenance, and reliability of … computer hardware and software.’ ” Goldsmith, at *1523.
California Courts understand there might be errors with computer records; however, the witness offering the records can be questioned on cross-examination about any errors. Goldsmith, at *1523.
As the Court explained:
Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer. Goldsmith produced no evidence that would support a finding of the nonexistence of this presumed fact. Therefore the trier of fact was required to assume the existence of the presumed fact. (Evid. Code, § 604.)
Goldsmith, at *1522-1523.
As such, the California Court of Appeal found there was no error in admitting the computer-generated photos from the red light camera, because there was no evidence offered to show the red-light camera was not functioning correctly or issues of errors raised on the cross-examination of the police officer offering the evidence. Goldsmith, at *1524.
Is the PhotoCop Testifying?
The Defendant claimed the photos and data imprinted on them were hearsay. Moreover, the Defendant claimed the State did not prove the business records or public records exceptions to the hearsay rule applied to the computer-generated reports. Goldsmith, at *1525.
The Court of Appeal did not agree, holding the photos and video were not hearsay, thus the hearsay rule did not apply. Goldsmith, at *1525.
Pursuant to California Evidence Code section 1200(a), ‘Hearsay evidence’ is evidence 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.” Pursuant to California Evidence Code section 1200(b), hearsay evidence is inadmissible, except as provided by law. Goldsmith, at *1525.
California Evidence Code section 175 defines a “statement” as being made by a “person,” which by definition does not include a computer. As the Court explained:
The Evidence Code does not contemplate that a machine can make a statement, and a printout of results of a computer’s internal operations is not a “statement” constituting hearsay evidence.
The hearsay rule stems from the requirement that testimony shall be tested by cross-examination, which can best expose possible deficiencies, suppressions, sources of error, and untrustworthiness that may lie beneath a witness’s bare, untested assertions; the hearsay rule should exclude testimony which cannot be tested by such cross-examination. It is not possible, however, to cross-examine computer-generated photographs or videos. (Nazary, supra, 191 Cal.App.4th at pp. 754–755.) As “demonstrative evidence,” photographs and videos are not testimony subject to cross-examination, and are not hearsay. Thus the hearsay rule did not require their exclusion from evidence.
Goldsmith, at *1525-1526.
The Court specifically stated they disagreed with People v. Borzakian (2012) 203 Cal.App.4th 525, because the Borzakian Court did not cite the rule that “that testimony of the accuracy, maintenance, and reliability of computer records is not required as a prerequisite to their admission, and did not agree that computer-generated photographs are not hearsay evidence.” Goldsmith, at *1526.
Bow Tie Thoughts
The Rules of Evidence are creatures of statute to ensure the trustworthiness of legal proceedings, burdens of proof and accurate factfinding (See, Evidence, 3rd Edition, Mueller & Kirkpstrick, Aspen Publishers). Without the Rules of Evidence, proceedings could turn into the Wild West.
Electronically stored information is still “new” to many attorneys, despite social media and smartphones being a societal norm. Many attorneys have significant trouble with ESI in discovery and even more difficulties with the Rules of Evidence.
Computers do not make statements; computers produce data. Human beings make statements and are the ones who program computers, maintain the machines and set parameters for producing reports. If there is a challenge to the evidence, it is best explored either on cross-examination of the witness offering the computer-generated report. Another option is to offer evidence of errors with the computer-generated report with another witness. However, the Rules of Evidence do not require the proffering party to disprove any possible errors as a condition of admissibility if no issue has been raised.
I am presented a webinar on Admissibility of ESI for iConect on March 29, 2012. If interested in learning more about the Admissibility of ESI from Relevance to Unfair Prejudice, you can view the webinar on the iConect website. The password is Purple.