Electronic Evidence Admissibility and Disclosure - Coursework Example

Electronic Evidence Admissibility and Disclosure By S. Mason in the 2nd edition of LexisNexis Butterworths defines Electronic evidence as “data that are manipulated, kept or communicated by a man made device, computer or computer system or transmitted over a communication system that has the potential to make the factual account of either party to the suit, more or less probable that it ends up without the evidence”. Electronic evidence includes; digital images, information on hand held devices, computer evidence, information from the internet, information from location devices and electronic data interchange systems (Leroux, 2007. Pp. 194) Section 5 of the English Civil Evidence Act of 1995 stipulates instances when electronic evidence is admissible. It states “in a civil suit, a statement, which is obtained from a document generated by a computer, shall be considered as evidence of any facts contained therein of which direct oral evidence would carry much weight, if it was shown that some conditions are met in relation to the statement and computer under consideration”. Subsection 2 gives the conditions that are to be satisfied (Friedman, 2005. Pp. 63). One of the conditions to be satisfied is that the document having the statement has had to be produced during times over which the computer was used to store the information for the purposes of the tasks that are frequently carried on over that time by an individual or a corporate body. Another condition is that, over time, there was regular supply to the computer, information that is similar of the kind found in the statement or of the type from which the content is derived. Additionally, and throughout the material time, the computer must have been in proper operation, or if not, that its in-operation at the time was incapable of affecting the production of the article or the accuracy of what is contained in the document. The last condition stipulates that the information that is contained in the statement is derived from the data supplied to the pc in the ordinary cause of those activities (Hedley, 2006. Pp. 22). Admissibility of electronic evidence in a civil proceeding takes several instances including; the best evidence rule, the real evidence rule, documentary evidence and hearsay evidence. The best evidence rule The best evidence rule provides that he who wants to produce evidence in a court of law must Endeavour to give the court the original evidence or the best evidence to assist the court to come up with the best legal conclusion. In Garton vs. Hunter (1969) and Springsteen vs. Masquerade Music Limited (2001) EWCA Civil case number 563, both Lord Denning and Parker LJ agree that the best evidence rule of admissibility has been overtaken by time. Parker LJ in his judgment points out that the admissibility should be dependent on the weight that is to be attached on such evidence. The judge further contends that the court retains the discretion of deciding whether or not the evidence adduced or not has the weight (Indira Carr, 2009. Pp. 75). Section 8 and 9 of the Civil Evidence Act of 1995 addresses the legal guidelines of whence electronic documents may be admissible as evidence in a court of law. Section 8 subsection 1 provides that statement in a document is considered as evidence in a court in civil proceedings if the original of the same is produced or by producing a copy of the said document or a material part of that document, as may be authenticated in such a process approved by the court. Subsection 2 of section 8 of the Act states that it is not material the numbers of removes there exist between the original and its copy. In interpreting this section in regard to electronic evidence, a computer print out or recording or the recording of other electronic devices may be admissible in court as primary evidence if relevance is confirmed to the satisfaction of the court (Insaa, 2007. Pp. 285). Section 9 subsection 1 of the Act state that any document shown as being part of the records of any business or any public authority may be received as evidence without offering any further proof. Subsection 2 of section 9 is to the effect that a document forms part of the business or public authority records if it is shown to the court a certificate of proof. The certificate must be confirmed by the signature of either an officer of the business or the authority to which the records originate from (Laryea, 2003. Pp. 42). From the foregoing, it is deducible that section 8 and 9 of the Civil Evidence Act of 1995 may be interpreted prove that even a copy of the original document may be admissible as evidence in civil proceedings. In the same breath, it can be implied that, copies of electronic documents are admissible if they are shown to be genuine/ authentic before the court. On the issue of genuineness/ authenticity, The British Standards Institute published the (Code of Practice for Legal Admissibility and Evidential Weight for Information Stored Electronically). (Leroux, 2007. Pp. 205). The code deals with authenticity and integrity of electronically kept material. It is applicable where the information could be used as evidence in civil disputes. An organization or party only needs to show that what is contained in the document is the same as at the time stored. If the image stored, is the electronic image of the original, the party adducing it as evidence before the court, must show that the image is a true copy of the original document (Laryea, 2003. Pp. 85). Real evidence Another type of computer generated evidence recognized in the UK is what is known as ‘real evidence’. Real evidence is defined by Mason as “material objects other than documents produced for the inspection of the court”. Real evidence includes calculations and other forms of analyses that will be produced by the computer itself generated by software that is fed in the computer. This evidence will be admitted as primary evidence. In jurisprudence offered in the cases of The Statue of Liberty [1968] 1 WLR 739 and R v Maqsud Ali [1966] 1 QB 688, it was held that printouts from the computer of the results of the chromatograph and spectrogram tests were real evidence (Leroux, 2007. Pg 205). In its obiter dictum, the court opined that the computers did not just record information fed into it but also processed and calculated the information. In the year 1981, Professor Smith crafted a rule to deal with the real evidence, which rule was later accepted and used by The Court of Appeal in R v Spicy. The rule stated that where certain information is recorded by mechanical means without the human mind intervention or output, then the record made is admissible in evidence. The proviso was that the machine recording was to be acceptable as being highly reliable (Leroux, 2007. Pp. 63). Documentary evidence The contents of any document may be used as primary evidence in any court of law. Secondary evidence emanating from such primary evidence may also be used. Secondary evidence has been defined by the Act to include all the copies made from electronic, chemical, magnetic, electrochemical, telematic, optical and other processes which would guarantee on their accuracy. The courts will only allow primary evidence to be adduced in court unless the original article has been lost or destroyed. Secondary evidentiary evidence may also be admitted when the original cannot be moved easily and also in instances where the law allows that any certified copy of the document may be produced as evidence. Issues of documentary evidence are addressed in Section 13 of the Civil Evidence Act 1995. Courts have held that any written material is evidence irrespective of where the writing might be. This was Pronounced by Darling J. in the case of R vs. Daye (1908) 2 KB (Mason, 2010. Pp. 97). It was later held in the case Derby & Company Limited and Others vs. Weldon and others (1991) that any database containing information capable of being read was a document irrespective of whether it is stored on the computer itself or of any back up medium of the computer. In paragraph, 2A of Direction 31A of the UK Civil Procedure Rules Practice puts forth that a document includes e-mails, and all other electronic communications and databases. As discussed above, Section 9 of the Act states that all electronic evidence is admissible whether or not it forms part of the record (Insaa, 2007 pp 286). Hearsay evidence Hearsay evidence has been defined as that evidence made by a person in court which person making the evidence did not personally witness the events to which he or she is alluding. It was the norm that hearsay was not to be admitted in court until The Civil Evidence Act 1995 abolished the rule in the UK. Section 1 of the Act deals with hearsay evidence in civil proceedings, and it allows for the admissibility of hearsay evidence (Michele, 2009. Pg. 62). Further, courts have held that electronic evidence is not hearsay because it was not put forward in oral evidence in court. In the case of State vs. Armstead (an American case), it was held that electronic evidence is not hearsay as it was achieved as the by-product of a machine which uses as input fed to the machine. Electronic evidence admissibility and the issue of hearsay in civil proceedings bring out the issue of evidential weight. Evidential weight is the value that a sitting court will place on a document presented upon it by either of the litigating parties. Evidential weight is, therefore, that extent that the court is willing to rely on the information provided (Michele Lange, 2009. Pp. 63). Disclosure of electronic evidence The disclosure of the electronic evidence is dealt with in part 31of the UK Civil Procedure Rules(CPR) as read together with Practice Directions(PD)31A and B. Section 31B deals with the disclosure of the electronic evidence in all the multi track cases. This sections deals with, among other things; word processed documents, e-mails, other electronic correspondence, databases, documents found in computer systems, documents found on all servers and backup systems, metadata and all documents that may have been deleted. Paragraph 5 of PD 31B also lists documents that are stored in mobile gadgets and all data that which may not be visible on either a screen or a printout (Insaa, 2007 pp. 289). For electronic disclosure, the parties to the suit are mandated to go into discussion amongst themselves on the type and the extent of the evidence to be brought before the court. A party risks being penalized by the courts if he or she were to act unilaterally. Electronic disclosure between the parties should be reasonable. Disclosure will depend on the number of documents, the proceedings complexity and expense that maybe incurred in retrieving the documentary evidence. Paragraph 20 and 21 of PD 31B addresses some of the factors to be put in consideration while conducting the reasonable search of the electronic evidence (Indira Carr, 2009. Pp. 84). Reasonable search is not standard to all cases but would depend on the case by case basis as held by Morgan J. in the case of Digicel. Morgan J., in that case, ruled “... an order for standard disclosure does not demand that every aspect shall be put to consideration. Any party to the suit who wants disclosure beyond being reasonably accessible should meet some conditions. This is to show “relevance and materiality’ justifying “cost and burden” of retrieving and producing the evidence. The onus of proving what is reasonable lies, in the first instance, with the party bringing that evidence. The counsel of the party adducing the evidence is tasked to hold discussions with the counsel on the opposing side for purposes of reaching an agreement. This is to try and reduce the risks of future litigations between those parties. The courts have the overriding responsibility to deal with each case in a just way (Insaa, 2007. Pp. 35). The court, in its attempt to address what is just will consider the cost of litigation, the complexity of the issue being addressed and the financial implications to the parties. PD 31B encourages the warring parties to deal amicably with each other in their discussion, in the attempt to disclose the electronic evidence. In the recorded case of Nichia Corporation v Argos (2007) EWCA Civil case number 741 Lord Justice Jacob held “Proportionality demands that the process to be adopted be designed to the enormity of the dispute”. The counsels of the warring parties have the duty to advice their clients on the issue regarding the document preservation when and if litigation is contemplated (Michele, 2009. Pp. 62). What happens in an instance where the documents produced in court contains information/ evidence that are disputed? In this case, the parties are to prove that the ‘chain of custody’ exists. It is also to be shown that the evidence has not been interfered in any manner. This principle was developed in the American jurisdiction. This system prevents the tainting of evidence and in the long run guarantees that the evidence brought in court is trustworthy. This system mandates that the party producing the evidence shows a chain of custody of the articles that he or she is producing as evidence. In case, the chain of custody is not sufficiently shown then the court has the discretion to decide whether the breach is to lead to the inadmissibility of such evidence. In the alternative, the judge or the jury (as the case may be) may be left with the discretion to decide on the weight of the document and its value to the court proceedings (Hedley, 2006. Pp. 86). The advent of the computer and other modern digital media came with them the rise of new forms storage of data or information that may be required as evidence in court. Olivier Leroux in his study titled Legal admissibility of electronic evidence shows that there has been substantial growth in criminal litigation where electronic evidence is needed. The same is also true with civil litigation cases. The writer goes ahead to point out that the law enforcing authorities and the judiciary have often been found wanting in dealing with such contemporary legal problems. The writer opines that all handling of such computer generated evidence must adhere to the rules of admissibility of evidence electronic evidence procured with disregard to the law will be deemed inadmissible and, therefore, and therefore struck out from the court proceedings (Leroux, 2007. Pp. 51). Electronic evidence has been admitted in the UK and other European countries. Developments in the digital arena over time have led to the invention of various gadgets that are used to store some data which may need to be used as evidence in the court of law. With such development came the need to change some statutes in order to accommodate these events. So long as it is shown that the electronic evidence one relies upon in court was procured in the proper way, the evidence is admissible. One of the mistakes that litigators make when relying on electronic evidence is by acquiring it through unauthorized means. Litigators fail in the effort of acquiring a warrant to help in the search and seizure of the evidence. If procured in the right manner then ultimately the evidence is used in court. The UK has made great strides in the admissibility of electronic evidence to the extent that it is now among the trend setter in this field (Hedley, 2006. Pp. 47). Reference List Friedman, S. (2005). The Litigators Guide to Electronic Evidence And Technology. Maynard: Bradford Publishing Company. Hedley, S. (2006). The Law of Electronic Commerce and the Internet in the Uk and Ireland. London: Routledge. Indira Carr, P. S. (2009). International Trade Law. London: Taylor & Francis. Insaa, F. (2007). The Admissibility of Electronic Evidence in Court (A.E.E.C.): Fighting against High-Tech Crime—Results of a European Study. Journal of Digital Forensic Practice Volume 1, Issue 4 , 285-289. Laryea, E. (2003). Paperless Trade: Opportunities, Challenges and Solutions. Alphen aan den Rijn: Kluwer Law International. Leroux, O. (2007). Legal admissibility of electronic evidence1. International Review of Law, Computers & Technology , 193-220. Mason, S. (2010). Electronic Evidence. London: LexisNexis Butterworth. Michele Lange, K. N. (2009). Electronic Evidence and Discovery: What Every Lawyer Should Know Now. New York: American Bar Association. Read More