Continuing with the series on electronic evidence, this is the third and last topic I take on: Admissibility. (the quality of being acceptable or valid, especially as evidence in a court of law)
As said in the previous blogs, this is an interest of mine, and I'm learning from Professor Andrew Norris work.
Each nation will have distinct and unique components within its overall evidential practice. Admissibility considerations, including those for electronic evidence, will largely be universal and standard across nations. Therefore, the discussion will likely apply to all nations and jurisdictions, subject to each nation’s unique terminology and variations.
Melvin using MIMRA’s tools to guarantee admissibility.
The general admissibility of evidence
Numerous factors can influence the admissibility of evidence, whether electronic or otherwise, in an adjudicative forum. A fundamental and unchanging requirement is that evidence must be relevant to a matter at issue in an adjudication. However, even if evidence is relevant, it may still be considered inadmissible for various reasons:
its probative value may be overshadowed by the risk of undue prejudice or potential confusion if permitted;
The proponent did not adhere to the rules of discovery or any other pre-trial disclosure requirements the evidence may contravene hearsay rules;
There may be inquiries concerning its authenticity.
The evidence may violate principles of fundamental fairness (for instance, evidence of a defendant’s general character or prior bad acts may not be admissible to prove that he or she committed the acts charged in a particular proceeding);
The evidence may be protected by privilege rules (such as spousal or medical privilege); the evidence may consist of inadmissible opinions;
The evidence may be excluded due to the government’s illegality in its acquisition or exploitation, usually owing to a breach of search and seizure regulations and
The evidence may not be presented in a manner required by the rules of evidence (for instance, the original document rather than a copy).
The admissibility of electronic evidence
Electronic evidence is, after all, still evidence; therefore, the same considerations outlined in subpart A apply to both electronic and non-electronic evidence. However, specific admissibility considerations are more prominently featured with electronic evidence. Moreover, unique aspects of electronic evidence do not exist with non-electronic evidence, which have potential admissibility ramifications.
Some unique aspects of electronic evidence
Digital or electronic information can be stored in any of the following: mainframe computers, network servers, personal computers, handheld devices, automobiles, or household appliances; alternatively, it can be accessed via the cloud, the Internet, private networks, or third parties. Most such information is generated and maintained in the normal course of business. As a result, discovering relevant and non-privileged data is routine and falls within the generally accepted scope of hearsay rules. Other data are generated and stored as a byproduct of various information technologies typically employed by parties in their ordinary business activities, though these are not usually retrieved and used for business purposes. Such data include the following:
Metadata, or ‘information about information’, encompasses the data embedded in a routine computer file, reflecting the file's creation date, when it was last accessed or edited, by whom, and sometimes previous versions or editorial changes. This information is not visible on a screen or in a standard file printout, and it is often generated and maintained without the user's knowledge.
System data refers to the information generated and maintained by the computer itself. The computer records a variety of routine transactions and functions, including requests for password access, the creation or deletion of files and directories, maintenance functions, and access to and from other computers, printers, or communication devices.
Backup data are generally stored offline on tapes, disks, external hard drives, or in the cloud. They are created and maintained for short-term disaster recovery rather than for retrieving specific files, databases, or programmes. These tapes or disks must be restored to the system from which they were recorded or to a similar hardware and software environment before any data can be accessed.
Files purposefully deleted by a computer user are seldom entirely erased from the computer’s hard drive. Instead, the operating system renames and marks them for potential overwriting if that specific space on the hard drive becomes necessary. Recovery of these files typically requires expert intervention.
Residual data exists in bits and pieces throughout a computer hard drive. Similar to the data found on crumpled newspapers used for packing shipping boxes, this data is also recoverable with expert intervention.
Concerning admissibility, there are certain features common to all electronic evidence:
in every case, there will be some device involved (hardware)19;
in every case, there will be some level of programming, code, algorithms, etc. that tells the device what to do (software); and
In all cases, evidence will be captured, stored, or transmitted in some way, as described.
Since these aspects are common in the generation, storage, transmission, and utilisation of electronic evidence, they cannot, on their own, act as a distinguishing factor for the admissibility of such evidence.
However, the nature of the device used, details about its software, and the methods of transmission, storage, and retrieval will undoubtedly be significant factors in determining the admissibility of electronic evidence. These factors ultimately affect the authenticity of the evidence.
Along with authenticity, the legality of how the evidence was obtained will be a crucial consideration for admissibility, as will adherence to hearsay and other rules designed to improve the reliability of evidence, whether electronic or otherwise.