Do you think that records which are produced exclusively by a computer, i.e. cell phone records are covered by the hearsay exception in TRE 902(10)? My report contains information produce solely by a computer; such items as calls received and made, duration of calls and cell sites. 902(10) seems to contemplate human activity.

Such stuff is not hearsay because it doesn't contain content that you are offering as a statement of a human being. It is merely electronically recorded activity by a machine. So long as you authenticate the reliability of the machine and its recording procedure, you should be OK.

Ben,

Be sure that your cell phone records really do contain only machine-created information.

John is right -- the results of a pure computer (machine created} process are not hearsay. Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK at 772-73 (5th ed. 2003). However, only part of what is generally thought of as a phone record is purely computer generated.

The part of the record, for example, that lists the defendant's name, address, and phone number will have been entered into the system by a person. Accordingly, lots of cases indicate that a phone record needs to satisfy the business records hearsay exception. U.S. v. Wills, 346 F.3d 476, 490 (4th Cir. 2003); U.S. v. Hernandez, 166 F.3d 335 at *2(4th Cir. 1998) (unpublished)("We also agree with Appellants that the phone records introduced at trial were inadmissible hearsay."); U.S. v. Linn, 880 F.2d 209 (9th Cir. 1989) (telephone records admissible under business records hearsay exception); Jackson v. State, 877 So.2d 816 (Fla.App. 4 Dist. 2004) (same); State v. Wilson, 728 P.2d 1332 (Kan.App.,1986); Com. v. McEnany, 732 A.2d 1263, 1272-73 (Pa.Super.,1999) ("we are satisfied that the Commonwealth presented sufficient information to justify a presumption of the trustworthiness of Cellular One's records so as to offset the hearsay character of the evidence"); see also Hernandez v. State, 2003 WL 22253337 (Tex.App.-Houston [14th Dist.] Oct 2, 2003) (not published)(if admission of phone records violated hearsay rule, it was harmless); Cochran, TEXAS RULES OF EVIDENCE HANDBOOK at 773 ("Computer output that is a compilation of information entered by a person is hearsay.").

You might be able to skirt this problem if you just offered a phone number and a string of numbers that had been called from it -- but then you are creating more problems on the authentication end of things.