2007-08-22 U.S. v Washington Computer Generated Information and Testimonial Hearsay - 4th Circuit Decision Applied to Breath Alcohol Testing Devices

Today's decision by the U.S. Court of Appeals for the 4th Circuit interprets the Supreme Court's Crawford v Washington 6th Amendment Confrontation clause/testimonial hearsay doctrine to computer generated information. In U.S. v. Washington (No. 05-4883p), the Court appears to adopt the 10th Circuit's approach in United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005). The 10th Circuit in Hamilton held that a declarant, for purposes of the Fed. R. Evid. 801(c) hearsay provision, must be human. Accordingly if no "human" makes the statement, the information cannot, according to the 4th Circuit, be considered hearsay and therefore is not subject to the 6th Amendment Confrontation Clause protections in connection with testimonial hearsay asserted against an accused.

Two things are interesting about this decision. First, the argument made by Appellant's counsel misses the mark. Appellant's counsel does not claim that the computer output is testimonial hearsay, but rather that the technician's report interpreting the data converts that data into testimonial hearsay. The court here seems to hold that it was indeed the computer output that accused, but since the output was not made by a "human" the computer's accusations, although testimonial, could not be considered hearsay, and therefore did not fall under the protection of Crawford v Washington.

The dissent holds out some hope for a more realistic and appropriate analysis. Although the dissent holds that the computer output is a "statement" it arrives at the right decision (that the output is testimonial hearsay) for the wrong reasons. The dissent reasons that since the computer output was interpreted by a human administrator, and the computer's "statement was somehow thus imbued with "statement" (from a human) quality sufficient to deem it hearsay and to trigger Crawford v Washington Confrontation Clause protection. The dissent also appears to give deference to the 10th Circuit reasoning in U.S. v Hamilton that information "automatically" generated by a computer "without assistance or input by a person" is not a statement made by a declarant and hearsay.

Second, it is interesting that the Appellant focused on neither the statements made by the code, nor the programmer who created the code contained in the computing device through assertions made in code (incontrovertibly, a language, such as "C"). Instead, Appellant chose to graft the interpretation of a technician with the statement made by the computing device. Once it is better understood that computers only make statements, and then only on behalf of a human who inputs an instruction to make a statement on behalf of that human, then perhaps we will see a shift in approach to treatment of computer generated information for hearsay analysis purposes. That it was not a unanimous decision holds out some hope for future cases, and for disagreement by other jurisdictions.

I think this decision creates more issues than it resolves, and should provide some additional fuel differing decisions, and ultimately, an opinion from the Supreme Court.

Cites: Crawford v Washington 541 U.S. 36 (2004)