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Evidentiary Foundation / Hearsay: Computer-Generated Report

State v. Gregg B. Kandutsch, 2011 WI 78, affirming unpublished decision; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Computer-Generated Report (Electronic Monitoring Device) – Foundation

Expert testimony isn’t necessary to lay a foundation for admissibility for a computer-generated EMD report:

¶28  Closing down a trial is not to be taken lightly, which is why the requirement of expert testimony is an extraordinary one.  Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶28, 323Wis. 2d 682, 781 N.W.2d 88.  A circuit court should take this “extraordinary step” only when the issues before the jury are “unusually complex or esoteric.”  Id. (quoting White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989); see also Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 7, 186 N.W.2d 258 (1971); City of Cedarburg Light & Water Comm’n, 33 Wis. 2d 560, 567, 148 N.W.2d 13 (1967)).  In other words, the circuit court must first find that the underlying issue is “not within the realm of the ordinary experience of mankind.”  Cramer v. Theda Clark Mem. Hosp., 45Wis. 2d 147, 150, 172 N.W.2d 427 (1969).

¶38  The electronic monitoring system at issue here involves the intersection of two processes: (1) transmission of a radio signal from the radio frequency device attached to the subject’s person to the receiver in the home monitoring unit; and (2) transmission of information from the receiver in the home monitoring unit to the monitoring center in Madison through a telephone line.  These technologies intersect when the home monitoring unit registers the absence of a radio signal emitted from the radio frequency device when that device——attached to the supervised individual——goes out of range.  The home monitoring unit then communicates the absence of a signal to the monitoring center via telephone.  At the monitoring center, the information sent via telephone is recorded by a computer.  Kandutsch argues that, while radio signals and telephone connections are well-known technologies easily understood by jurors without the aid of experts, the interplay of these technologies in effect creates a “new” technology that is not so readily understood.

¶45  Similar to our decision in Hanson, we conclude that a court should not afford a presumption of accuracy to a particular report or EMD until the State has put forth evidence regarding the installation of the specific device and testimony as to its accuracy and reliability by a DOC employee familiar with its operation.[8]

¶46  Consequently, the State was permitted to authenticate and lay a foundation for the EMD report by providing testimony describing the electronic monitoring system and the process by which the daily summary reports are generated and showing that this process produces an accurate result. This is precisely what Agents Klarkowski and Williams addressed in their testimony.

¶50  We conclude that the EMD report does not present an issue that is particularly complex or unusually esoteric, and additionally, that the EMD involves scientific principles that are indisputable and fully within the lay comprehension of the average juror.  Expert testimony was not required to properly establish a foundation for the report’s admissibility.  Furthermore, the testimony provided by Agents Klarkowski and Williams fully satisfied the requirements of Wis. Stat.§ 909.01.

State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999) (expert testimony required to lay foundation for PBT), distinguished, ¶¶34-36 (issue there was whether DOT had approved the device, not its “particular complexity”). Nonetheless, this is what Doerr held: “To lay a foundation for the jury about the PBT’s scientific accuracy and reliability, a prosecutor must ‘affirmatively prove compliance with accepted scientific methods as a foundation for the admission of the test results.’ Baldwin, 212 Wis. 2d at 260, 569 N.W.2d at 43. We do not read Dallmann’s testimony as establishing that the PBT’s analysis of Doerr’s breath was accurate and achieved through an accepted scientific method.” The dissent points to a dearth of caselaw authority, and expresses concern “that because we do not understand computers, we suspend our healthy common-sense skepticism when dealing with them,” ¶¶67-68. (Expressed otherwise, perhaps, if less elegantly, the court doth nod to Homer: “Don’t worry head. The computer will do all the thinking from now on.”)

Hearsay Rule – Computer-Generated Records

¶59  This court has not previously had an opportunity to directly address the hearsay implications in the distinction between computer-stored and computer-generated records.  We find it appropriate at this time to distinguish between computer-stored records, which memorialize the assertions of human declarants, and computer-generated records, which are the result of a process free of human intervention.


¶61  A record created as a result of a computerized or mechanical process cannot lie.  It cannot forget or misunderstand.  Although data may be lost or garbled as a result of some malfunction, such a malfunction would go to the weight of the evidence, not its admissibility.[12] The record does not present the danger of being taken out of context, because the opposing party has a right to put it in context.[13] Agent Klarkowski perhaps summarized it best when she testified regarding the EMD, “It doesn’t have a mind of its own, it’s a computer device, it’s a high-tech device, it reports things when they happen.”

¶62  Relying on Zivcic, the court of appeals concluded that the daily summary report generated by the EMD was likewise the “result of a process, not a statement by a declarant.”  Kandutsch, No. 2009AP1351-CR, ¶19.  Because the report was generated as “the result of an automated process free of human intervention,” it was not hearsay.  Id., ¶20.

¶63  We agree with the court of appeals conclusion based on the distinction we draw between computer-stored records and computer-generated records.

¶64  Because we conclude that the daily summary report was not hearsay, we do not reach Kandutsch’s argument that the report does not fall within the “records of regularly conducted activity” exception to hearsay set forth in Wis. Stat. § 908.03(6).  Consequently, the State had only to satisfy the general authentication requirements in Wis. Stat. §§ 909.01 and 909.015.  As discussed in the previous section, these authentication requirements were satisfied through the testimony given by Agents Klarkowski and Williams.  Accordingly, the circuit court did not err in admitting the evidence over Kandutsch’s hearsay objection.

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