Challenges in presenting digital evidence in court
Introduction
Digital evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Before accepting digital evidence, a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether a copy is acceptable or the original is required. Depending on the jurisdiction, a court may or may not find digital evidence admissible. In the US, courts have been using federal rules of evidence to consider the admittance of digital evidence. This however changed in 2006 when there were amendments in federal rules of evidence. These changes required the preservation and storage of digital evidence.
Digital evidence includes electronic communications, such as e-mails, text messages, and chat room communications; digital photographs; website content, including social media postings; computer-generated data; and computer-stored record (Cohen, 2008).
Challenges
In Lorraine v. Markel American Insurance Company, Judge Grimm described a decision model for addressing the admission of electronic evidence, which, is nearly identical to the one many proponents apply to the admission of more traditional forms of evidence. The court decided that the proponent of electronic evidence focus first on relevance, asking whether the electronic evidence had any tendency to make some fact that is of consequence to the litigation more or less probable than it would be otherwise (Friedan & Murray 2011).
Under the federal law, evidence is admissible before court based on relevance. Therefore, irrelevant evidence is inadmissible before court. In determining whether digital evidence ought to be admitted, the court considers whether the relevance is logical or pragmatic. In this case, relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (Mercuri, 2005). This usually poses as a challenge to the party that presents digital evidence for the opponents can easily argue the an abuse of discretion standard
Second, the proponent should address authenticity, asking if he can present evidence demonstrating that the electronic evidence is what it purports to be. This however, is always weakened with the argument that digital evidence can readily be altered by anybody. There is always also the fact that the source of digital evidence is more often than not unknown.
Third, the proponent must address any hearsay concerns associated with the electronic evidence, asking if it is a statement by the declaring, offered for the truth of the matter asserted, and, if the electronic information is hearsay, whether an exclusion or exception to the hearsay rule applies (Carrier, 2002). Hearsay applies in form of computer-generated evidence. The court in this case found that information generated from computers could not be classified as hearsay because no humans were involved in the creation of the record.
Fourth, the proponent must address the application of the original documents rule, and finally, the proponent should consider whether the probative value of the electronic evidence is substantially outweighed by the danger of unfair prejudice confusion, or waste of time (Carrier & Spafford, 2004). Therefore, even though the court can admit printouts from a computer as secondary evidence, the primary evidence must exist. If the primary evidence cannot be found then the evidence is inadmissible in court.
Conclusion
Careful consideration of these traditional evidentiary principles will permit a proponent to successfully admit electronic evidence. However, these principles are riddled with loopholes that can easily be bypassed by the defense therefore a lot of care needs to be put in place when presenting digital evidence.
References
Carrier, B., & Spafford, E. H. (2004, July). An event-based digital forensic investigation framework. In Digital forensic research workshop.
Cohen, F. (2008). Challenges to digital forensic evidence. Fred Cohen and Associates.
Cohen, F. B. (2010). Fundamentals of digital forensic evidence. In Handbook of Information and Communication Security (pp. 789-808). Springer Berlin Heidelberg.
Mercuri, R. (2005). Challenges in forensic computing. Communications of the ACM, 48(12), 17- 21.
Carrier, B. (2002). Open source digital forensics tools: The legal argument. stake.
Frieden, J. D., & Murray, L. M. (2011). The Admissibility of Electronic Evidence Under the Federal Rules of Evidence. Rich. JL & Tech., 17, 5-16.
