Commonwealth v. Wallace, J., Aplt. ( 2023 )

[J-51-2022] [MO: Todd, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 93 MAP 2021
:
Appellee : Appeal from the Order of the
: Superior Court dated January 8,
: 2021, reargument denied March 10,
v. : 2021, at No. 2427 EDA 2019
: Affirming the Montgomery County
: Court of Common Pleas, Criminal
JAMAL WALLACE, : Division, Judgment of Sentence
: dated May 23, 2019 at No. CP-46-
Appellant : CR-0004008-2018.
:
: ARGUED: September 15, 2022
CONCURRING OPINION
JUSTICE WECHT DECIDED: February 22, 2023
The Majority concludes that GPS data transmitted from an ankle monitor—which
placed Jamal Wallace at the intersection of Spruce and Willow Streets in Norristown on
the night of the relevant assault 1—does not constitute hearsay under the plain language
of the Pennsylvania Rules of Evidence. 2 In doing so, it effectuates a significant change
in our law to which I cannot assent. For decades, Pennsylvania courts have analyzed the
admission of computer-generated evidence under the business records exception to the
rule against hearsay. 3 While this Court’s precedent may not compel endorsing that
1 Wallace himself was not wearing the ankle monitor. Rather, his co-defendant,
Mason Clary, was wearing it as a condition of his release on state parole. The statement
of a third man, C.S., placed both Wallace and Clary at the shooting. See Notes of
Testimony (“N.T.”), 3/5/19, at 225-26.
2 See Maj. Op. at 17; Pa.R.E. 801(a).
3 See Pa.R.E. 803(6).
evidentiary categorization today, the Majority discards the status quo using logic that
threatens to erode evidentiary protections and reinvent how courts treat the output of
machines. For the reasons that follow, I concur in the result only.
In the interest of clarity to the bench and bar, two critical distinctions must be made
at the outset. First, computer-stored evidence and computer-generated evidence present
different analytical starting points. 4 Emails, word processing files, and voice recordings
are examples of assertions that human beings make and store electronically, and the
hearsay framework applies to them as comfortably as it would to a handwritten letter or
to a recording on a cassette tape. 5 But evidence generated by a computer—such as a
test result in a laboratory, a reading from a radar gun, records of phone calls, or ATM
receipts—poses a different challenge, in that it becomes less clear the degree to which
human beings, as opposed to the computer itself, are responsible for the output. 6 This
second category might be separated further into evidence that requires human operation
or initiation (i.e., a DNA test) and that which does not (i.e., metadata).
The next critical distinction, which pertains to computer-generated evidence, is
between the individual responsible for designing the algorithm, program, or machine at
issue and the individual who operates it. In the case sub judice, someone developed and
programmed the ankle monitors and the GPS system that Attenti—the company that
contracted with the Pennsylvania Board of Probation and Parole to supply electronic
4 See Rudolph J. Peritz, Computer Data and Reliability: A Call for Authentication of
Business Records Under the Federal Rules of Evidence, 80 NW. U. L. REV. 956, 980
(1986).
5 See, e.g., Commonwealth v. Fitzpatrick, 255 A.3d 452, 470-72 (Pa. 2021)
(analyzing an email under the hearsay framework).
6 See generally Andrea Roth, Trial by Machine, 104 GEO. L.J. 1245, 1270-76 (2016);
Brian Sites, Machines Ascendant, 3 GEO. L. TECH. REV. 1, 23-24 (2018); Adam Wolfson,
Note, “Electronic Fingerprints”: Doing Away with the Conception of Computer-Generated
Records as Hearsay, 104 MICH. L. REV. 151, 151 (2005).
[J-51-2022] [MO: Todd, C.J.] - 2
monitoring equipment—used to track state parolees; but it presumably was not the same
person who provided this particular information about this particular ankle monitor in
service of the Commonwealth’s case.
The Majority observes that our Rules of Evidence, for purposes of the hearsay
rule, define a statement as “a person’s oral assertion, written assertion, or nonverbal
conduct,” 7 and thereby concludes that, because “the relevant assertion . . . was not made
by a person but collected electronically by the GPS monitoring device,” it “cannot
constitute hearsay.”8 The Majority finds no barrier to such a conclusion in Commonwealth
v. Le, 208 A.3d 960 (Pa. 2019), or in Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007),
because “the contested evidence [in those cases] was merely presumed to be hearsay
for purposes of analyzing a hearsay exception.”9 The Superior Court, meanwhile,
appeared to conclude that the GPS system itself was the declarant. 10
While I agree that Le and Carter do not compel any particular result here, 11 that
treatment of these cases fails to grapple with the complexity of the question before us. A
7 Pa.R.E. 801 (emphasis added).
8 Maj. Op. at 17 (emphasis in original).
9 Id. (emphasis in original); id. at 18 (finding that the portions of Le and Carter upon
which Wallace relies constitute, “[a]t best . . . dicta”).
10 Commonwealth v. Wallace, 244 A.3d 1261, 1271 (Pa. Super. 2021) (citing with
approval United States v. Lizarraga-Tirado, 789 F.3d 1107, 1109-10 (9th Cir. 2015)
(holding that, because “the program makes the relevant assertion,” there is “no statement
as defined by the hearsay rule”); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.
2003) (“a statement is something uttered by a person, so nothing ‘said’ by a machine . . .
is hearsay”) (cleaned up); People v. Rodriguez, 224 Cal.Rptr.3d 295, 314 (Cal. App. Ct.
2017) (“there was ‘no statement being made by a person’”); Wisconsin v. Kandutsch, 799
N.W.2d 865, 879 (Wis. 2011) (“the report was generated as the result of an automated
process free of human intervention”) (cleaned up)).
11 In Le, this Court found that a challenge to the admission of phone records had not
been preserved, and therefore did not consider the merits. 208 A.3d at 970-71. In Carter,
(continued…)
[J-51-2022] [MO: Todd, C.J.] - 3
computer program does not make statements. Like any other tool of fallible human
design, people use it to make statements. After all, “[a] computer program is nothing
more than an organized series of commands given by a human computer programmer,”
and “[e]very action taken by a computer is taken only at the command of a human
programmer.” 12 Just as a clock cannot wind itself to line up with Eastern Standard Time,
a computer cannot teach itself how to locate an ankle monitor on a plane of coordinates,
nor can it instruct itself to do so in a particular instance. Furthermore, for an assertion to
be “collected” from somewhere, 13 it must be made in the first place.
The Majority seems to suggest that courts analyzing computer-generated
evidence like cell phone records and drug test results on hearsay grounds have simply
ignored the clear textual commands of federal and state rules of evidence. In Melendez-
Diaz v. Massachusetts, the United States Supreme Court scrutinized the admission of a
lab report identifying a white powdery substance as cocaine under the business records
this Court explicitly reached its conclusion “regardless of whether [a lab report fell] within”
the business record exception. 932 A.2d at 1269.
12 Christian Chessman, Note, A “Source” of Error: Computer Code, Criminal
Defendants, and the Constitution, 105 CALIF. L. REV. 179, 181 (2017). While “program
sophistication and speed may create the illusion that the programs function
autonomously,” all of the computer’s actions stem from source code created by a human.
Id. at 182. As Chessman further opines:
[p]rogram output is neither neutral nor objective because programs are, at
their base, written human speech. That humans are one step removed from
program output is not equivalent to the removal of the human element. If
computer programs are no more reliable . . . than human statements, then
many established concerns about human witness testimony readily apply
to evidence produced by computer programs, including bias, malfeasance,
and even simple mistakes. Thus, computer programs are not more reliable
than human statements because they are human statements--and no more
than human statements.
Id. at 185-86.
13 Maj. Op. at 17.
[J-51-2022] [MO: Todd, C.J.] - 4
exception. 14 Like our rules, the Federal Rules of Evidence define “statement” as “a
person’s oral assertion, written assertion or nonverbal conduct.” 15 But that definition did
not hinder or impede the Court’s analysis. Years earlier, and before this Court’s
comments in Le and Carter, the Superior Court held that cell phone records—which
showed that the last phone number the defendant dialed before the murder was the
victim’s—were admissible under the business records exception. 16 The Commonwealth
Court similarly has considered a former employee’s drug test results under the same
framework. 17 Examples like this from both state courts and federal courts abound. 18 I
find it improbable that judge after judge has overlooked the word “person” in deciding
these cases. The more likely explanation for their conclusions, in my view, is that those
14 557 U.S. 305, 321 (2009).
15 F.R.E. 801(a) (emphasis added).
16 See Commonwealth v. McEnany, 732 A.2d 1263, 1272-73 (Pa. Super. 1999); see
also Commonwealth v. Lewis, 1673-1679 EDA 2021, 2022 WL 3714540 (Pa. Super. Aug.
29, 2022) (non-precedential decision) (admitting cell phone records under the business
records exception).
17 See Turner v. Unemployment Compensation Bd. of Review, 899 A.2d 381, 386-
87 (Pa. Cmwlth. 2006)
18 See Kilgore v. State, 763 S.E.2d 685, 687 (Ga. 2014) (holding that phone records
were admissible under the business records exception to the hearsay rule); Ga. Code
Ann. § 24-8-801 (defining “statement” as the “oral or written assertion or nonverbal
conduct of a person”) (cleaned up) (emphasis added); People v. McDaniel, 670 N.W.2d
659, 661 (Mich. 2003) (“The laboratory report at issue is, without question, hearsay.”);
M.R.E. 801(a) (defining “statement” as “an oral or written assertion or nonverbal conduct
of a person”) (cleaned up) (emphasis added); see also United States v. Moore, 923 F.2d
910, 914 (1st Cir. 1991) (holding that computer-generated “loan histories” constituted
hearsay); United States v. Bonomolo, 566 Fed.Appx. 71, 73-74 (2nd Cir. 2014) (admitting
computer-generated spreadsheets detailing federal grants under the business records
exception to the rule against hearsay); Perkins v. Rock-Tenn Serv., Inc., 700 Fed.Appx.
452, 461 (6th Cir. 2017) (admitting computer-generated evidence of notices being sent
under the business records exception to the rule against hearsay).
[J-51-2022] [MO: Todd, C.J.] - 5
courts have sub silentio endorsed Wallace’s position, and recognized that some “person”
(e.g., a designer or an operator) was responsible for the statement’s creation. 19
Critically, Wallace is not calling for total exclusion of the GPS evidence. Rather,
he asserts that, because “a human created [the] algorithm” in question, an individual “with
actual knowledge of how it works should be available for cross-examination on its
reliability[.]” 20 The Commonwealth offered the testimony of David Dethlefson, “a sales
representative for Attenti who had absolutely no idea how the GPS system worked,” who
could not comment upon the “process of generating or obtaining the records,” or “whether
the process had produced accurate results.”21 Dethlefsen
had not had any training on how to determine if the data was accurate, he
did not think any calibration was performed on the devices, and he noted
that the accuracy of the device was determined using a proprietary
algorithm which was not given to the defense or evaluated by experts.
19 The Majority defends its treatment of these cases by positing that those courts
have engaged in the “common practice” of “forego[ing] addressing what might be viewed
as a more difficult legal question . . . where it maybe resolved on an alternative basis.”
Maj. Op. at 21 n.21. But would the more straightforward and simpler resolution not have
been to forego any analysis of exceptions by determining that the proffered evidence fell
outside of the hearsay framework in the first place? Per the Majority’s rationale, there is
no difficult legal question to avoid, because computers are not people. Furthermore, none
of the cases in question stated an assumption that the proffered evidence was hearsay
for purposes of analyzing an exception, nor did they hold that the proffered evidence was
inadmissible. Rather, they held that evidence was admissible under the business records
exception to the hearsay rule. See Kilgore, 763 S.E.2d at 687 (holding that cell phone
records “were admissible under the business records exception to the hearsay rule”);
McEnany, 732 A.2d at 1273 (“[W]e are satisfied that the Commonwealth presented
sufficient evidence to justify a presumption of the trustworthiness of [the cell phone
records] so as to offset the hearsay character of the evidence.”) (emphasis added);
Bonomolo, 556 Fed.Appx. at 73 (“Rule 803(6) creates an exception to the hearsay rule”).
A necessary analytical prerequisite to any such finding, unless it has been assumed, is
that the evidence is subject to the hearsay rule, and can only be saved by an exception.
To admit something as a business record is to deem it hearsay.
20 Wallace Br. at 33.
21 Id. at 46.
[J-51-2022] [MO: Todd, C.J.] - 6
Instead, it was based on a company secret, and the accuracy was certainly
not evaluated by peer review studies. 22
In other words, Dethlefson indicated that he had neither designed nor operated the
technology that located Clary’s ankle monitor, and he implied that someone else at Attenti
knew how it worked. Wallace’s most compelling argument is that this testimony confirms
that Dethlefsen cannot be the declarant because he was in no way responsible for the
statement coming into existence, 23 and that this case therefore equates to the traditional
hearsay scenario of an individual saying, “Someone told me that John Doe stole the
victim’s car, and I have reason to believe that she was telling the truth.”
The Majority suggests that “[t]he best way to advance the truth-seeking process
with respect to [machine-generated] ‘statements’ is not through cross-examination of the
machine operator, but through the process of authentication.” 24 I am (at best) skeptical
of this contention. Authentication is a relatively low threshold, 25 asking only whether the
proffered evidence is what it purports to be. 26 Wallace does not contest that the print-out
22 Id. at 47 (citing N.T., 3/5/19, at 161).
23 The same can be said of Clary’s parole agent, Harry Gaab. Although he collected
the GPS data from Attenti, he was not responsible for its creation nor was he
knowledgeable about its function or accuracy.
24 Maj. Op. at 21 (quoting United States v. Lamons, 532 F.3d 1251, 1264-54 (11th
Cir. 2008)); see also Pa.R.E. 104(e) (establishing that even when a “court rules that
evidence is admissible”—i.e., that it is relevant and authentic—“this does not preclude a
party from offering other evidence relevant to the weight or credibility of that evidence.”)
25 See, e.g., United States v. Lundy, 676 F.3d 444, 453 (5th Cir. 2012) (“the low
threshold for authentication”); Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016)
(“authentication is a relatively low threshold that only requires a prima facie showing that
the proffered evidence is authentic; the ultimate determination of the authenticity of the
evidence is a question for the fact-finder”).
26 See Pa.R.E. 901; see also Commonwealth v. Brooks, 508 A.2d 316, 318 (Pa.
Super. 1986) (“Generally, two requirements must be satisfied for a document to be
admissible: it must be authenticated and it must be relevant. In other words, a proponent
(continued…)
[J-51-2022] [MO: Todd, C.J.] - 7
of coordinates and movements that the prosecution submitted is GPS data, or that it
originated from Attenti’s supervision of Clary. In other words, he concedes that it is what
it purports to be. Wallace instead asserts that without someone from Attenti to
substantiate this evidence and answer questions about what conclusions might be drawn
therefrom, allowing it into court in the first place would be prejudicial. He certainly might
have been able to convince the jury not to trust or ascribe weight to the GPS data after
its admission, but the same could be said of any out-of-court statement. 27 The entire
hearsay framework stems from the basic premise that it is often best to exclude allegedly
untrustworthy evidence before it can shape a factfinder’s perception of the events in
question. That is the ruling that Wallace seeks, and to shoehorn determinations about
the trustworthiness, weight, and credibility of the GPS data into an authentication inquiry
misunderstands both the purpose of Rule 901 and the nature of his challenge. 28
In light of my understanding that computers do not make statements “in a
vacuum,” 29 my doubts as to the ability of an authentication challenge to remedy the
must show that the document is what it purports to be and that it relates to an issue or
issues in the truth determining process.”).
27 See Laurence H. Tribe, Comment, Triangulating Hearsay, 87 HARV. L. REV. 957,
958 (1974) (describing how “the perceived untrustworthiness” of out-of-court acts and
utterances has led “the Anglo-Saxon legal system to exclude [them] as hearsay despite
[their] potentially probative value”).
28 If the concern animating Wallace’s challenge is that the algorithm underlying
Attenti’s GPS monitoring system is faulty or otherwise unreliable, the best way to raise it
would not be through hearsay or authentication. There are other ways of discrediting
evidence. Wallace could have enlisted an expert in GPS evidence to discuss its
shortcomings, or subpoenaed employees at Attenti more familiar with the nuts-and-bolts
of the technology than Dethlefsen. Defendants in his position are not without a path to
meaningfully challenge this type of evidence, but it may not lead through hearsay or
authentication.
29 Wallace Br. at 37; see also supra note 5. The Majority counters that, per Rule
901(b)(9), a proponent of evidence “may be asked to prove that a machine or process
produces an accurate result.” Maj. Op. at 22. This point is not persuasive for two reasons.
(continued…)
[J-51-2022] [MO: Todd, C.J.] - 8
prejudice that Wallace foresees, and a bevy of case law that I find persuasive, 30 I would
hold that the GPS data used to locate Wallace constituted hearsay, and I respectfully
disagree with the Majority’s contrary conclusion. The statement—that Clary and therefore
Wallace were at the intersection of Spruce and Willow Streets in Norristown at 8:21 PM
on April 6, 2018—was not Dethlefsen’s or Gaab’s to make. It was made out of court,
either by the designer of Attenti’s GPS tracking system or the operator of that system who
documented Clary’s movements, and repeated by Dethlefsen and Gaab for the truth of
the matter asserted. I concur in the result, however, on the grounds that the GPS data
was admissible under the business records exception to the hearsay rule.
The business records exception is found in Pa.R.E. 803, which provides in
pertinent part:
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
...
(6) Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any form) of
an act, event or condition if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business,
First, this language in no way indicates a requirement (“may be asked”), and it appears
in a non-exhaustive list of examples. See Pa.R.E. 901(b). Second, the Majority’s reading
is inverted. The language it cites allows the proponent of “[e]vidence describing a process
or system” to authenticate that evidence by showing that the process or system “produces
an accurate result.” Id. (emphasis added). But Wallace is not challenging evidence that
describes Attenti’s GPS system, he is challenging its result. In fact, what he seeks is
evidence that describes the system. Per Rule 901(b)(9), the proponent of evidence
describing a GPS system could demonstrate its authenticity by showing—by way of tests
or examples—that it accomplishes its intended purpose. It does not follow, however, that
the appropriate avenue for challenging a result of that system lies in authentication.
30 See supra notes 13-17 and accompanying text.
[J-51-2022] [MO: Todd, C.J.] - 9
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness. 31
As long as an “authenticating witness can provide sufficient information relating to the
preparation and maintenance of the records to justify a presumption of [their]
trustworthiness,” the proponent of a business record has provided “a sufficient basis . . .
to offset the hearsay character of the evidence.” 32 Though Dethlefsen could not have
qualified as the declarant given his lack of knowledge about how Attenti’s GPS tracking
worked, he unquestionably qualified as a custodian of the company’s records because
he had access to them and could provide information about their preparation and
maintenance. 33
Wallace’s argument that the GPS data does not qualify as a business record
because it was prepared in anticipation of litigation is unavailing. In Melendez-Diaz, the
United States Supreme Court explained that:
[d]ocuments kept in the regular course of business may ordinarily be
admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6).
But that is not the case if the regularly conducted business activity is the
production of evidence for use at trial. Our decision in Palmer v. Hoffman,
318 U.S. 109, (1943), made that distinction clear. There we held that an
31 Pa.R.E. 803(6).
32 In re Indyk’s Estate, 413 A.2d 371, 373 (Pa. 1979).
33 See Virgo v. W.C.A.B. (Cnty. of Lehigh-Cedarbrook), 890 A.2d 13, 20 (Pa. Cmwlth.
2005) (“[I]t is not essential to produce either the person who made the entries or the
custodian of the record at the time the entries were made or that the witness qualifying
the business records even has personal knowledge of the facts reported in the business
record.”).
[J-51-2022] [MO: Todd, C.J.] - 10
accident report provided by an employee of a railroad company did not
qualify as a business record because, although kept in the regular course
of the railroad's operations, it was “calculated for use essentially in the court,
not in the business.” Id. at 114. The analysts’ certificates—like police
reports generated by law enforcement officials—do not qualify as business
or public records for precisely the same reason. See [Fed.] Rule [Evid.]
803(8) (defining public records as “excluding, however, in criminal cases
matters observed by police officers and other law enforcement
personnel”). 34
Unlike the accident report in Palmer and the laboratory report in Melendez-Diaz, the GPS
data at issue here did not spawn into being for purposes of this or any trial. Rather, as a
company whose sole purpose is to track parolees, Attenti continuously produced and
maintained records of Clary’s movements. Furthermore, the records were not “calculated
for use . . . in the court,” 35 as opposed to in business; tracking parolees is Attenti’s
business and, as the trial court noted, the records’ primary purposes are “supervision and
sanction” by Attenti’s client, the Pennsylvania Board of Probation and Parole 36 The
company would have kept them regardless of whether Clary ever violated parole, and
though parole violations certainly may result in litigation, not all do. Accordingly, the GPS
data here are more akin to the phone records that were admitted in McEnany37 than they
are to, for instance, results from a state police crime lab. 38
34 Melendez-Diaz, 557 U.S. at 321-22 (cleaned up); see contra Commonwealth v.
May, 898 A.2d 559, 565 (Pa. 2006) (admitting a police report under the business records
exception).
35 Palmer, 318 U.S. at 114.
36 Tr. Ct. Op. at 14-16.
37 See 732 A.2d at 1273 (emphasizing that the records were “generated at the
moment a phone call is made”).
38 While I reserve judgment upon other questions in this vein should they come
before this Court, it should be noted that my analysis is grounded in the record, and should
not be construed as a per se rule. See N.T., 3/5/2019, at 154-57 (Dethlefsen testifying
about what information is collected in Attenti’s GPS records and his access to them). If,
for instance, Attenti did not regularly maintain records of parolees’ movements, and only
(continued…)
[J-51-2022] [MO: Todd, C.J.] - 11
I would affirm the Superior Court’s judgment on those grounds. Though it may not
be felt in this case (because of the applicability of the business records exception), sooner
or later, the Majority’s approach will prove untenable. Prosecutors will rely upon
computer-generated evidence and, without having to demonstrate why that evidence
should be entitled to a presumption of trustworthiness through an exception to the
hearsay rule, wield it to put defendants on their back foot. They will shield their cases
from evidentiary objections by laundering evidence and conclusions through algorithms
and code. It will become defendants’ unenviable burden to convince jurors and judges
that complex, inscrutable machinery—despite its “mechanical appearance and
apparently simple output,” along with its “veneer of objectivity and certainty” 39—has erred.
This Court’s guidance will have undercut the relevance of the business records
exception 40 and bought into the fiction that when a series of human commands is
complicated enough, no one is speaking at all. 41
turned on a device or extracted GPS data at the direction of state police when a monitored
individual was suspected to have committed a violation, the “anticipation of litigation”
exception to the business records exception conceivably might apply.
39 Roth, Trial by Machine, supra n.6, at 1269-70; see also id. (opining that complex
computer programs and machines not only “obscured how the sausage is made, they
obscure that their output is sausage at all”). For more on the “black box” problem, see
Brian Sites, Machines Ascendant: Robots and the Rules of Evidence, 3 GEO. L. TECH.
REV. 1, 23-24 (2018) (quoting Andrea Roth, Machine Testimony, 166 YALE L. J. 1972,
1977-78 (2017)).
40 Cf. Commonwealth Fin. Sys., Inc. v. Smith, 15 A.3d 492, 499 (Pa. Super. 2011)
(finding that computer-generated billing statements and account information were not
admissible under the business records exception where the proponent of the evidence
failed to “establish circumstantial trustworthiness”).
41 While the Majority suggests that “advancements in software systems may
eventually call into question the efficacy of our hearsay and perhaps other evidentiary
rules,” Maj. Op. at 23 n.22, I believe that day has come. In order to meet it, this Court
does not need to “stretch . . . common sense meanings of oral or written statements under
Rule 801.” Id. It could simply recognize that “[a] computer program is nothing more than
an organized series of commands given by a human computer programmer,” and that
(continued…)
[J-51-2022] [MO: Todd, C.J.] - 12
“[e]very action taken by a computer is taken only at the command of a human
programmer.” Chessman, supra note 12, at 181.
[J-51-2022] [MO: Todd, C.J.] - 13