Electronic evidence presents unique authentication challenges. In this issue we review the latest book on the subject, "Foundations of Digital Evidence" by George L. Paul and add practical suggestions.
"Foundations of Digital Evidence" by George L. Paul, (C) 2008 by ABA, published in July 2008, 450 pages, price: $119.95.
The book covers the philosophy and the history of the Law of Evidence, the Hearsay Rule, and their applicability or failures when the evidence becomes digital. It explains digital objects, treating them as an advanced form of writing, and explains when the "who, when, where, and what" of the digital evidence can be ascertained and the evidence authenticated, leading to the conclusion that in most cases the proper scientific authentication is not possible.
In contrast, as the book shows, the courts today will most likely overrule the admissibility and authenticity objections and allow into evidence the documents which may not be authentic, avoiding dealing with the complicated technical and legal issues, and letting the jury decide the matter as the question of the weight of the evidence. At this point the book gives an advice to the practitioners who understand the current state of the matter to use it for the clients' benefit.
Having ascertained the less than perfect state of the law, the book suggests the changes in the Law of Evidence which would properly reflect the nature of digital evidence. It explains why the digital evidence is, after all, hearsay, but suggests that it should be allowed into evidence not as a business record exception, but as a new "Systems Reliability" exception. The book thus calls for changes in a number of areas. The judges should require more substantive evidence authentication, going beyond trivial showings. The law should be changed to reflect the nature of digital evidence. And the world of business should build the authentication of "who, when, where, and what" into the documents it produces.
The last chapters of the book, written by experts in respective areas, cover islands of already existing more stringent "eunomic", that is, "ordered" world. This includes the robust authentication mechanism built into PDF, the capabilities of public/private encryption systems, the specialized eunomia created by a group of mortgage players, the electronic notarization, the arguably better treatment of digital evidence in the five nations of the word (Argentina, France, Germany, Japan, and Russian Federation), and the role of the Vendor in Handling digital evidence.
As Magistrate Judge Facciola writes in the preface to the book, the book and its author are revolutionary, suggesting the new rules of evidence based not on tradition but on how digital information actually comes into creation. While only time will tell if Paul will prevail against the powerful forces arrayed against his approach, in the meanwhile the book serves as remarkable, albeit demanding, intellectual exercise. It makes a most compelling case of the need for the understanding of how computers work and for awareness of the reality that digital information, far from being inherently reliable, can be manipulated, corrupted, and misused.
The book is thus useful both as guidance for the many forces involved in forming the law, as well as providing the background and the specific legal and technical armory for the practitioners of today.
The author, Mr. George L. Paul, was kind enough to find time, amid his busy schedule of a trial lawyer, to read the review and verify that it does not contain obvious inaccuracies.
This review was written in the lull following hurricane Ike, which left Houston with no power, by the candle light. The quiet and the absence of interruptions allowed for a pleasurable study.
As the book convincingly shows, today's courts are more likely than not to admit unreliable evidence, simply because it was published by the computer. The authentication requirements are reduced to trivial showing, so that once a witness testifies that the document is authentic, this testimony is accepted, without requiring that the witnessed be indeed thoroughly familiar with the document in question. The objections that the document lacks proper authentication, may be forged and thus may not be what it purports to be are often overruled. In a recent case printouts of emails from hotmail were admitted into evidence, until a forensics examiner proved that they were fabricated. What is a law practitioner to do in this situation?
As George Paul shows in the chapter entitled "A Day in the Life of the Printed Electronic Document," smart sleuthing can find the forgery. Individual analysis of every detail can be very time-consuming.
However, what if there is no forgery? What if the document could easily been changed, in fact has been changed, and then printed? How can one challenge its authenticity? Just stating that it could have been changed is often not enough. Computer technology is complex, and "could have been" is not convincing in the face of the lack of understanding.
A more convincing way is to demonstrate in front of the court and the jury, how easy it is to forge a document in question. Our previous letter shows how anybody with a limited knowledge of web site authoring can completely change the story on a web site in a minute, then print the new site content looking as polished as the old one. Therefore, the challenge plan involves two steps: (1) find a way to forge the specific digital evidence, (2) rehearse and show an elegant presentation which will convince any layman that he could have forged this evidence with apparent ease. This will lead to the conclusion that the document is either inadmissible, or unauthenticated, or that the evidence it provides carries little weight.
Note: Legal information is not legal advice. Top8 provides information pertaining to business, compliance, and litigation trends and issues for educational and planning purposes. Top8 and its consultants do not provide legal advice. Readers should consult with competent legal counsel.
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The author gratefully acknowledges the editing help and numerous suggestions of Kelvin Rocquemore, Esq., of Trial Solutions.
The author is also thankful to his colleagues at the litsupport discussion group, whose discussions provide him with much inspiration and knowledge.