In bank fraud trial, computer transaction records were admissible as evidence of the crime and the “mere possibility” that the records “may have been altered” went “only to the weight of the evidence not its admissibility,” in United States v. Bonallo, 858 F.2d 1427 (9th Cir. 1988)
The more things change, the more they stay the same; at least with regard to applying evidence standards to claims that computer evidence may be altered. We previously noted a case in which the district court rejected claims that e-mail evidence was inadmissible merely because it was possible to alter e-mails. See Admitting E-mail Evidence. Over twenty years ago, the Ninth Circuit set a standard for considering the admission a computer record when a party charged that the record had been tampered with. The standard was not new then and appears to be still used today.
In 1985 the bank received a “greater than average” number of customer complaints of unwarranted ATM withdrawals from their accounts. An initial investigation suggested that the problem was caused by an employee manipulating the computer records. Accordingly, the bank created a number of fake transactions in order to see which employee was conducting the fake ATM transactions. Ultimately, the defendant was identified as the perpetrator and was charged with bank fraud.
The defendant waived a jury trial and evidence was presented that cash had been withdrawn from ATMs and that the withdrawals had been changed so that they appeared on the account of other bank customers. In contrast, the defense theory was that the defendant had been set up by the “real” culprit whom the defendant did not identify. The prosecution sought to admit at trial exhibits listing the victims of the fake ATM transactions. This information was compiled from computer logs and other records. The prosecution sought and gained their admission as business records under FRE 803(6). The defendant opposed this evidence, contending that the records were untrustworthy and had been manipulated:
“He contends that proof of untrustworthiness lies in the fact that the government is claiming, as its central theory of the case, that he altered the computer records. Also, Bonallo points out, government witnesses testified that it was in fact possible to alter the transaction records.”
Bonallo, 858 F.2d at 1435. The circuit dismissed this argument. It was:
“entirely without merit. Had the government attempted to introduce into evidence what it contended to be ordinary records, made in the normal course of business, in their original form, then proof that the records had been altered would indeed tend to show that they were unreliable. Here, however, the government introduced what it contended to be altered records precisely to show that they were in fact altered. Thus, the government's theory that Bonallo altered the records is wholly consistent with its characterization of the records and the purpose for which it introduced them. Under these circumstances, the fact that the records reflected the alterations in no way tends to prove that they are untrustworthy.”
Bonallo, 858 F.2d at 1436-37.
The circuit was not persuaded by the defendant's theory that he had been framed because the defendant did not “provide any evidence to support that theory. The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness. The mere possibility that the logs may have been altered goes only to the weight of the evidence not its admissibility.” Bonallo, 858 F.2d at 1437 (citing United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988) (“The district court recognized that the defense had brought out inaccuracies in the computer printouts but held that these inaccuracies went to the weight of the evidence, not to admissibility. This is the general rule.”)).
The general approach to the claim that computer records have been altered turns on whether the party making this charge presents more than mere speculation. In the absence of specific tampering evidence, the general approach of the courts will be to admit the evidence and leave it to the jury to assess what, if any, weight it should be given. The bare allegation that computer-maintained records have been tampered with and cannot be authenticated under FRE 901 has long been rejected. See also United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985) (“‘[A]n airtight security system’ that would prevent alterations “is not ... a prerequisite to the admissibility of computer printouts. If such a prerequisite did exist, it would become virtually impossible to admit computer-generated records; the party opposing admission would have to show only that a better security system was feasible.”).
Comments
Post new comment