Digital evidence
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Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial.
The use of digital evidence has increased in the past few decades as courts have allowed the use of e-mails, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories, databases, the contents of computer memory, computer backups, computer printouts, Global Positioning System tracks, logs from a hotel’s electronic door locks, and digital video or audio files.
While many courts in the United States have applied the Federal Rules of Evidence to digital evidence in the same way as more traditional documents, courts have noted very important differences. As compared to the more traditional evidence, courts have noted that digital evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive, and more readily available. As such, some courts have sometimes treated digital evidence differently for purposes of authentication, hearsay, the best evidence rule, and privilege. In December of 2006, strict new rules were enacted within the Federal Rules of Civil Procedure requiring the preservation and disclosure of electronically stored evidence.
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[edit] Authentication
As with any evidence, the proponent of digital evidence must lay the proper foundation. Courts largely concerned themselves with the reliability of such digital evidence. As such, early court decisions required that authentication called "for a more comprehensive foundation." US v. Scholle, 553 F.2d 1109 (8th Cir. 1976).
As courts, like society, became more familiar with digital documents, they backed away from the higher standard. Courts have since held "computer data compilations… should be treated as any other record." US v. Vela, 673 F.2d 86, 90 (5th Cir. 1982).
Nevertheless, the "more comprehensive" foundation required by Scholle remains good practice. The American Law Reports lists a number ways to establish the comprehensive foundation. It suggests that the proponent demonstrate "the reliability of the computer equipment", "the manner in which the basic data was initially entered", "the measures taken to insure the accuracy of the data as entered", "the method of storing the data and the precautions taken to prevent its loss", "the reliability of the computer programs used to process the data", and "the measures taken to verify the accuracy of the program". 7 American Law Reports 4th, 8, 2b.
[edit] Best evidence rule
Digital evidence is almost never in a format readable by humans. As such, another step is required for admitting any digital document into evidence. Conceptually, any additional step creates a new document, which might otherwise not qualify under the "best evidence rule". However, the Federal Rules of Evidence rule 1001(3) states "if data are stored in a computer…, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’"
Moreover, courts almost never bar printouts under the best evidence rule. In Aguimatang v. California State Lottery, the court gave near per se treatment to the admissibility of digital evidence stating "the computer printout does not violate the best evidence rule, because a computer printout is considered an ‘original.’" 234 Cal. App. 3d 769, 798.
[edit] Hearsay
Very often an opponent to digital evidence will object to its admission as hearsay. Like documentary evidence, not all digital evidence is hearsay.
First, there is some digital evidence which is not hearsay at all. Hearsay is a "statement, other than one made by the declarant while testifying at the trial… offered in evidence to prove the truth of the matter asserted." A declarant is a person. Therefore, courts have held that digital evidence is not hearsay when it is "the by-product of a machine operation which uses for its input ‘statements’ entered into the machine" and was "was generated solely by the electrical and mechanical operations of the computer and telephone equipment." State v. Armstead, 432 So.2d 837, 839 (La. 1983).
Moreover, where the evidence is not offered to prove the truth of the statements, digital evidence is not hearsay. This is the case, for example, with logs of chatroom conversations. While a chatroom log may contain many out of court statements, which would otherwise be hearsay, they may be used for other purposes, including as a party admission. US v. Simpson, 152 F.3s 1241 (10th Cir. 1998).
Second, hearsay recognizes a number of exceptions. Most frequently, proponents of digital evidence seek admission under the business records exception. This perhaps is because the definition of business records includes a "data compilation." FRE 803(6). However, obviously not every piece of digital evidence is a business record. Such reliance on the business records exception has had bad results for its proponents. In Monotype Corp. PLC v. International Typeface Corp, the plaintiffs relied on the business records exception to attempt to admit two e-mails as evidence that the defendants had infringed their copyright only to have it excluded by the court. 43 F.3d 443 (9th Cir. 1994). The court noted that the e-mail was not created "in the regular course of [the third party’s] business."
Other proponents have had success with the public records exception, excited utterance, Present sense impression, and the FRE 807—the catch-all. Where digital evidence does not meet one of the other exceptions but has "equivalent circumstantial guarantees of trustworthiness" that hearsay seeks to protect against, a court may apply the catch-all.
[edit] Further reading
General:
- Stephen Mason, general editor, Electronic Evidence: Disclosure, Discovery & Admissibility (LexisNexis Butterworths, 2007) covering Australia, Canada, England & Wales, Hong Kong, India, Ireland, New Zealand, Scotland, Singapore, South Africa, United States of America
- Stephen Mason, general editor, International Electronic Evidence, (British Institute of International and Comparative Law, 2008), covering Argentina, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Thailand and Turkey
United States of America:
- Michael R Arkfeld, Electronic Discovery and Evidence (Law Partner Publishing, 2003)
- Adam Cohen and David Lender, Electronic Discovery: Law and Practice (Aspen Publishers, 2003)
- Brent E. Kidwell, Matthew M. Neumeier and Brian D. Hansen, Electronic Discovery (Law Journal Press) Looseleaf
- Joan E. Feldman, Essentials of Electronic Discovery: Finding and Using Cyber Evidence (Glasser Legalworks, 2003)
- Gregory P. Joseph, Modern Visual Evidence (Law Journal Press) Looseleaf
- Jay Grenig and William Gleisner, eDiscovery & Digital Evidence (Thomson-West Publishing, 2005)
- Michele C.S. Lange and Kristen M. Nimsger, Electronic Evidence and Discovery: What Every Lawyer Should Know (American Bar Association, 2004)
- Paul R. Rice, Electronic Evidence - Law and Practice (American Bar Association, 2005)
- Sharon Nelson, Bruce A. Olson and John W. Simek, The Electronic Evidence and Discovery Handbook (American Bar Association, 2006)
- Ralph C. Losey, e-Discovery: Current Trends and Cases (American Bar Association, 2008)
[edit] See also
[edit] External links
- Computer and Digital Forensics Discussion Forum
- International Journal of Digital Evidence (IJDE)
- International Organization on Computer Evidence (IOCE)
- Scientific Group on Digital Evidence
- Digital Evidence: Standards and Principles
- The Digital Evidence in the Information Era
- Forensic IT group of ENFSI
- Digital Evidence Journal
