Digital Evidence Admissibility

Law Examination Q3: Outline and discuss the factors which will determine the admissibility of computer-generated or computer stored evidence Answers: Admissible Evidence Before determine the admissibility of the computer-generated or computer stored evidence, we should know an evidence of what conditions are needed to meet is an admissible evidence. Gerald and Kathleen Hillgave us a definition of admissible evidence: ” evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury's shock at gory details may outweigh that probative value. In criminal cases the courts tend to be more restrictive on letting the jury hear such details for fear they will result in "undue prejudice." Thus, the jury may only hear a sanitized version of the facts in prosecutions involving violence.” So as the Gerald and Kathleen Hill said all of the evidence must be related the case and must be competent. This kind of evidence will have the admissibility. In the definition of the admissible evidence, they did not mention the format of the evidence. That means the admissibility of computer-generated and computer stored evidence should be considered if the digital evidence is related the case and the digital evidence with high reliability. In the other word if the evidence has probative value, the evidence will have admissibility. In today's information age the number of computer-related crime increased very fast we cannot deny the probative value of digital evidence. Because computer-generated or computer stored evidence have probative value. So this kind of evidence can be describe as ordinary evidence, and ordinary rules of evidence can be applied on digital evidence. The factors which will determine the admissibility of digital evidence According to the Federal Rules of Evidence Rule 402, relevant evidence is admissible. So the factor of determine the admissibility of digital evidence is whether the evidence relevant or not. But it is not enough to determine the admissibility of computer-generated or computer stored evidence because computer-generated or computer stored evidence has his own unique nature. “The unique nature of digital evidence, as well as the ease with which it can be manipulated or falsified, creates hurdles to admissibility not faced with other evidence.” Hon. Alan Pendleton said. So in many computer-related cases the admissibility of computer-generated or computer stored evidence was always called into question. When the admissibility if computer-generated or computer stored evidence was called into question the court should use the analytical framework to analysis the admissibility of the digital evidence. Pursuant to Minnesota Judicial Training Update 13-11 the analytical framework should be the four step “STEP 1: EXHIBIT MUST BE “AUTHENTICATED OR IDENTIFIED” STEP 2: DOES EXHIBIT CONSITUTE “HEARSAY OR NON-HEARSAY” STEP 3: MUST BE “RELEVANT” AND NOT “UNFAIRLY PREJUDICIAL” STEP 4: MUST NOT CONSTITUTE “PRIVILEGED” COMMUNICATION” Although this four-step are used to verify admissibility of general evidence, these four-step can also be used to determine the admissibility of computer-generated or computer stored evidence. Because computer-generated or computer stored evidence is a part of the evidence. Authenticated or identified Authenticated means the third party will provide a lot of evidence to prove the finding digital evidence in question is what the provider said it to be. “The most common method of authentication is the use of testimony by a witness with knowledge that the exhibit is what it claims to be. Minn. R. Evid. 9.01(b)(2). And in the Minn. R. Evid 9.01 list other 9 methods. But there are two types of authentication of digital evidence one is self-authenticating the other one is not self-authenticating. Pursuant to Minn. R. Evid. 9.02(5) information that from government website is self-authenticating. On the other hand private website are not self-authenticating. In the Mini. R. Evid it just mentioned what kind of web site information is self-authenticating what kind of web site information is not self-authenticating. But in another word government website that means public information, private website that means private information. So we can summarized as follows: Public evidence is self-authenticating, and private information is not self-authenticating. So computer-generated or computer stored evidence should be divided into two situations, one is self-authenticating one is not self-authenticating. In certain circumstances computer-generated data is constant. For example the size of the hard disk. We can believe this kind of computer-generated data is self-authenticating data. But in most situation computer-generated or computer stored evidence requires authentication. For example computer-generated material is generated by computer itself such as the size of the file, last modify time of the file, last access time of the file and so on. Pursuant to Minn. R. Evid(b)(9) the process of authentication is two-fold “(1) A description of the system or process to produce a particular result, and (2) Evidence showing that the process or system produces an accurate result. ” However, because the unique nature of digital evidence can be manipulated or falsified the questions of reliability of the digital evidence are often hotly disputed, the requirement to “authenticate” is usually the most difficult to overcome.

1. Hearsay or Non-hearsay (The computer has first-hand information)

Hearsay rule is a very important rule in rules of evidence. According to this rule only the testimony of the person who knows the fact that can be accept. Because only this kind of person can be at the trial. If this rule is applied to the document evidence that will means if the document writer cannot testify for the document, the document cannot be an evidence. For the computer-generated or computer stored evidence, the evidence writer is computer itself and people cannot interrogate computer, so the computer-generated or computer stored evidence will not be accepted. This is obviously unreasonable so the legislature add another rule in the hearsay rule for computer-related evidence. That is “first hand hearsay generally admissible in civil cases” theCivil Evidence Act 1968. In another word people who have first-hand information produce the document, this document has admissibility, even if the people do not appear in court. According to this rule the computer-generated or computer stored evidence has admissibility if we can prove this computer has the first-hand information. So the one factor which will determine the admissibility of computer-generated or computer stored evidence is determining the first-hand information stored inside on this computer or generated by this computer.

2. Must be “Relevant” and not “unfairly prejudicial”

As I mentioned before according to the Federal Rules of Evidence Rule 402, relevant evidence is admissible. So the first step to determine the admissibility of computer-generated or computer stored evidence is prove that there is a logical relationship between the evidence and the case. There is a simple example to understand the relevance, when kidnapping case happened, the investigator find there is a threatening e-mail in the mailbox of the family of the victims. The threatening e-mail is clearly associated with the cases. This kind of computer evidence is admissible. If the investigator find some photos of victims’ family, the photos and the case has no relevance. So this kind of evidence is not admissible. In Minn. R. Evid. 401 another rule of relevant evidence is as follows: “Relevant evidence means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” So even if relevant, evidence may be unfairly prejudicial. And this kind of evidence is not admissible. This rule also applies in the computer evidence, “if the computer-generated or computer stored evidence‘s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” This kind of evidence is unfairly prejudicial. So another factor which will determine the admissibility of computer-generated or computer stored evidence is check the evidence if it is unfairly prejudicial.

3. Must not constitute “Privileged” communication

M.S. 595.02, subdivision. 1 competency of witnesses, identifies various communications. For example “a husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage.” And M.S 595.02 also provide some other communications like communications between attorney and client, communication between doctor and patient and so on. Because of this factor “Must not constitute “Privileged” communication”, when we try to determine the admissibility of computer-generated or computer stored evidence we should check if the evidence against this rule. For example litigation between husband and wife, the husband get the digital evidence came from his wife’s computer (computer-generated or computer stored evidence) without his wife’s consent. This kind of evidence is not admissible. But TJ McIntyre said “Particularly in family law cases it can be very easy for a litigant to (illegally) access the laptop, webmail or other electronic information of the other side to collect ammunition for use at trial. This presents interesting legal issues as to when such evidence will be admissible, despite the way in which it was obtained.” According to the Federal Rules of Evidence Rule 402, relevant evidence is admissible. Obviously the evidence is relevance. But on the basis that it was obtained illegally and in breach of the constitutional right to privacy of the respondent. Problem of determine the admissibility of computer evidence Now the factors which will determine the admissibility of computer-generated or computer stored evidence are “Exhibit must be ‘authenticated or identified’” , “does exhibit constitute ‘hearsay or non-hearsay’” ,“ the evidence must be ‘relevant’ and not ‘unfairly prejudicial’”, and “the evidence must not constitute ’privileged’ communication”. The court can according to evidence provided to determine the evidence is relevant or not. The court has formulated a rule against the hearsay rule, protect the probative of computer evidence. But now in the computer-relate evidence area still have big problems of “authentication” and “privileged”.

1. Authentication

Computer-generated or computer stored evidence can be easily modified, destroyed, deleted, and transferred. The reliability of computer evidence always be called into question.

2. “privileged” communication

As TJ McIntyre saidbefore “Particularly in family law cases it can be very easy for a litigant to (illegally) access the laptop, webmail or other electronic information of the other side to collect ammunition for use at trial. This presents interesting legal issues as to when such evidence will be admissible, despite the way in which it was obtained.” If this kind of evidence is admissible. That means legal encourage people to illegally obtain private information of others. Conclusion Now the authentication of electronic evidence issues to be resolved slowly. So many digital forensics tools be built to do investigation. And now we just need a standard format to describe the digital evidence, use the software to test the difference between the original data and digital evidence and then got the reliability of the evidence. But this method based on the good preservation of the original data. If the original data be changed or destroyed we need a more underlying technology to find out the trace of changes. Use the trace of changes as an evidence. About the privileged communication problem. We cannot deny the probative of the computer evidence that has been find. We cannot ignoring some evidence especially the evidence can prove the facts of the crime. But we do not allow someone to use the illegal way to obtain evidence. Because this kind of action violate the personal privacy. Under the premise of not denying the admissibility of digital evidence obtained illegally, we should give the one who obtain the evidence illegally penalties according to law and admit the admissibility of the digital evidence. Q4: What challenges does the growth of electronic discovery present for legal systems? A long time ago, people use paper to create, transmit and storage information. But in the information age the creation, transmission, storage of digital information has generated an exponential increase in number of electronic information records. For example people can communicate with each by email, messages, and cellphone it will produce a lot digital information, as a result, the volume of electronically stored information (“ESI”) has increased exponentially over the last decade that are potentially relevant to a legal dispute. The electronic discovery develop very fast. But electronic discovery laws in various countries are still behind. The rapid development of electronic bring a lot of challenges to legal systems. Cost A large amount of information produced by people frequently is costly and time-consuming to identify, preserve and produce what can often amount to thousands or even millions of electronic records. Moreover, the traditional adversarial approach to civil discovery only tends to foster additional delay and motion practice where electronically stored information (“ESI”) is concerned, further contributing to excessive litigation costs. As mentioned above a large amount of information produced by people. If we do the electronic discovery a lot of information should be discovered, it will cost a lot of money. And electronically stored information (“ESI”) is different from paper document, it often changes over time. Because of the rapid development of the information technology. Many digital information update automatically, they can be overwritten, and transmitted. If do the electronic discovery the high costs and burdens of conducting e-discovery are driven not only by the sheer volume of available ESI, but by its wide dispersal and complexity. For example, e-mail accumulates in prodigious quantities, in part because it can be shared, forwarded, and replicated among many different users. Similarly, a specific electronic document can reside in multiple locations: a hard drive, network server, laptop, blackberry, disaster recovery backup media, etc. In addition, ESI is much more difficult to dispose of than paper records. A shredded paper document is virtually irretrievable, but a deleted computer file can sometimes be recovered, albeit with some difficulty, through forensic methods. The digital revolution also has created new types of evidence not previously presented in litigation, including E-Z pass records, ATM records, and smart cards with embedded data such as Metro cards. We can conclude that the procedures of electronic discovery are on the basis of costs and burdens. ESI costs arise for three reasons:

1. The volume of data can dwarf anything in hard copy.

2Information can be in different media, with costs involved in furnishing it in an accessible form. 3Independent technological assistance may be required. Rules of Order 31 attempt to limit expenses and introduce parity between the parties and take saving costs into consideration. The aim of the new rules is to share the burden of producing in bulk, documents which may or may not be necessary. Sometimes a third party may be appointed by the courts to identify the relevant, in this case, the cost is initially borne by the applicant, but is recoverable as costs in the cause. In my point, it's better if the law require parties to share the expenses with reasonable reasons. However, it's the duty of the applicant to undertake extra costs if the applicant makes extra requirements on electronic discovery.

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