Federal Evidence Review

Tenth Circuit concludes computer-generated “header” information (including the screen name, subject of the posting, the date the images were posted, and the individual's IP address) was not hearsay, and distinguishes computer-stored evidence, in United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005)

Computer evidence may be subject to hearsay challenges. A child pornography case highlights that not all computer evidence is hearsay and some may be admissible as non-hearsay. The case distinguished computer-generated and computer-stored information.

The case commenced when a German police official, using a program to scan the Internet for child pornography images, located 56 child pornography images posted on a newsgroup. After determining the IP address for these posting belonged to a U.S. Internet service provider, he referred the report of his findings to U.S. law enforcement. An ICE agent confirmed that the IP address was assigned to defendant Hamilton during the time the images were posted. Contact was made with the defendant, who resided on an Air Force Base. After a consent search did not reveal any images on his computer, he was told that the investigation included the posting of child pornography images. After waiving his Miranda rights, he admitted posting child pornography images. He proceeded to trial on a charge of knowingly transporting or shipping in interstate commerce child pornography, and was convicted.

During the trial, the defendant objected on hearsay grounds to the admission of 44 of the child pornography images which “included computer-generated ‘header’ information which listed, in part, the following information regarding the person who posted the images to the newsgroup: screen name, subject of the posting, the date the images were posted, and the person's IP address.” Hamilton, 413 F.3d at 1142.

The Tenth Circuit agreed with the trial court that “the header information that accompanied each pornographic image was not hearsay.” As the circuit explained:

“Of primary importance to this ruling is the uncontroverted fact that the header information was automatically generated by the computer hosting the newsgroup each time Hamilton uploaded a pornographic image to the newsgroup. In other words, the header information was generated instantaneously by the computer without the assistance or input of a person. As concluded by the district court, this uncontroverted fact clearly places the header information outside of Rule 801(c)'s definition of ‘hearsay.’ In particular, there was neither a ‘statement’ nor a ‘declarant’ involved here within the meaning of Rule 801.”

Id. at 1142 (footnote omitted). The circuit distinguished that “the result might be different if ‘computer-stored’ data, as opposed to computer-generated data, were involved.” Id. at 1142 n.4 (citing People v. Holowko,. 486 N.E.2d 877, 878-79 (Ill. 1985) (distinguishing computer-generated and computer-stored data)).