Admissability of Digital Data in the Court Room Outside of the US
Over the summer months of 2010, The Documentalist presented a five part series on the admissibility of electronic documentation as evidence in the American court system titled “Legal Considerations for Electronic Evidence.” These five posts focused on a variety of issues, starting with an overview of the admissibility of electronic evidence in the U.S. and moving through Relevance and Authenticity, Applying Rules of Authenticity, Hearsay, and finally Original vs. Duplicate Documents and Unfair Prejudice. Though these posts aren’t comprehensive by any means, they do cover the major issues of rules of evidence and legal precedent that apply to determining whether and how electronic documents can serve as evidence in legal cases before the court–an important topic in the field of human rights documentation, especially as certain sectors of human rights work move to a greater use of and dependence upon digital documentation in activism. Fortunately, in coping with electronic evidence, American legal practice has been able to extend and apply the Federal Rules of Evidence to accommodate the many issues inherent to electronic evidence. The trick has been to draw a direct line of descent (so to speak) from physical documentation to digital forms in order to establish precedent for applying the rules of evidence to electronic media.
However, a question emerges when we begin to look at the admissibility of electronic documents in court systems outside of the U.S. that do not have a long-established set of Rules of Evidence and precedent for applying them. Each court system must therefore establish its own practices for processing and presenting electronic evidence, and in doing so, at least some of the world’s legal systems are drawing on U.S. legal practice and precedent as a basis for establishing their own body of precedent vis-a-vis electronic evidence in court cases–a point that the article from Bangladesh summarized below makes clearly.
Dealing with Electronic Evidence Outside of the U.S.
In the article “Admissibility of Surveillance Evidence: A Legal Perspective,” (ASA University Review, 2 (2):1-30. 2008) author Abu Hena Mostofa Kamal raises important questions about legal rights to privacy internationally in the face of a rapidly growing world of digital surveillance technology and whether or how these new sources of digital data can be submitted as evidence in court. Given the nature of the Human Rights Electronic Evidence Study, the latter question is of greater interest here. But most interestingly, Mr. Kamal is writing from Bangladesh in a journal that focuses on Bangladeshi scholarship–particularly socio-economic research–for a young university (founded in 2006) dedicated to providing quality education to the lower income strata of Bangladesh (see ASA University Bangladesh).
As Mr. Kamal points out, the first step that courts must take vis-a-vis surveillance evidence is to determine whether they were legally collected and did not infringe on a defendant’s rights to privacy. He notes that this question is approached differently in three court systems: The U.S., the U.K., and Australia. Specifically, in the U.S. and Australia, protection of rights to privacy can cause courts to throw out otherwise damning evidence, thus allowing criminals to escape conviction of crimes, while in the U.K., surveillance data might be deemed to be illegally gained, but allowed into court if the severity of the alleged crime under consideration is deemed high enough by the justice that he will override personal rights in favor of public safety and successful prosecution of major crimes (Kamal, 2008:10-12). Judicial discretion in such cases raises many questiosn vis-a-vis personal rights vs. the rights of the state to prosecute criminal behavior and the rights of citizens to be protected from the same.
Once the question of the legality of electronically generated surveillance evidence has been established, the same needs to be proven to be admissible as evidence. In explaining this process, Mr. Kamal (writing in Bangladesh for a Bangladeshi audience) draws heavily upon American legal practice and precedent. The main problem he sees for establishing the admissibility of electronic surveillance data is a deep distrust of its reliability and authenticity:
Courts always challenge the admissibility of evidence procured from surveillance and interception gadgets on the basis of the following grounds:
[a] Surveillance techniques are untrustworthy as there remain chances of manipulation. A manupulated datum or photograph or infromation is not admissible as evidence (Kamal, 2008:7).
Mr. Kamal counters, however, that if we consider surveillance data as yet another form of electronically created documentation similar to digital photos, emails, or computer generated documents, then courts can call on U.S. standards of relevance, authenticity, and reliability to determine whether these materials can serve as evidence in court cases. In drawing this parallel between surveillance evidence and any other form of electronically created documentation, Mr. Kamal argues that surveillance data is subject to the same risks of tampering as any other form or electronic evidence and therefore is subject to the same standard of evidence as any other electronic form (compare the following with discussions at The Documentalist of Relevance and Authenticity, Applying Rules of Authenticity, and Original vs. Duplicate Documents and Unfair Prejudice):
The standards that are essential for determining the admissibility of digital evidence derived from surveillance gadgets are as follows:
1. Relevance: Courts admits [sic] only relevant evidence. So, evidence must be logically cnnected to the dispute and have probative value.
2. Authenticity: Once evidence is found to be relevant, it must be authenticated. It means there must be a guranatee of trustworthiness attached to the evidence. Authentication standards are meant ‘to ensure that the evidence is what it purports to be, and how rigorous a foundation is needed to make this finding depends on the existence of something that can be tested in order to prove a relationship between teh evidence and an individual and control against the perpetration of fraud.’
3. Reliability: Another evidentiary lynchpin is that evidence must be original. This rule is known as the ‘Best Evidence Rule’. As per American law, an ‘original’ of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. IF data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original” (Kamal, 2008:8).
When considering these points, Mr. Kamal further observes (also following American legal practice) that relevance, authenticity, and reliability are ultimately to be supported by expert witness testimony attesting to processes employed in creating originals, whether not not originals have been tampered with, and the accuracy of copies in determining if they can stand in for originals as evidence in court cases.
Mr. Kamal makes the above case for treating surveillance data as any other form of electronically created documentation drawing from primary and secondary sources related the the U.S. Federal Rules of Evidence. He then summarizes a number of U.S. court cases that establish precedent for treating surveillance as we would electronic evidence in general. In so doing, he sets up U.S. legal practice and precedent as a model for international courts when determining the admissibility of such evidence (provided it was legally obtained) in criminal court cases.