mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/08/90)
Gene Spafford lectures on evidence law: >Believe it or not, it has to do with your rights to trial and to >challenge evidence. As it has been explained to me by lawyer-types >(prosecutors and "private" lawyers alike), there is the concept of >"best evidence." The "best evidence rule" has been modified by the Federal Rules of Evidence both in reference to duplicates and in reference to computer data. These rules were adopted by Congress in 1975. See below. > If something is going to be introduced as evidence >in a trial, the law requires that the best version of the evidence be >produced, i.e., the original version, if possible. If a copy was >introduced, the defense could challenge it and claim that the copy was >not the same as the original -- that it had been doctored by the >prosecution to make it look bad, or that accidental changes had been >made, or that it wasn't a complete copy. According to both statute >and case law, that objection would probably have to be sustained. >Thus, a copy might not be admissable as evidence, and it is difficult >to make a case when you can't introduce evidence! It would help if you actual read some evidence law rather than relying on anedotal recitations of common-law evidence rules from the prosecutors you talk to. Consider the following excerpts from Article X of the Federal Rules of Evidence: Rule 1001. Definitions For purposes of this article the following definitions are applicable: [text omitted] (3) Original. 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. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or output readable by sight, shown to reflect the data accurately, is an "original." (4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. Rule 1002. Requirement of Original [This is the common-law Best Evidence Rule as it has been codified in the Federal Rules of Evidence; it is therefore the rule to which Spafford refers.] To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. Rule 1003. Admissibility of Duplicates. [This is the rule Spafford hasn't heard of.] A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Two points should be noted here. First, it is clear that a printout of the contents of a hard disk counts as an original under the definitions section. Second, duplicates are admissible unless there is some dispute as to their provenance. As a practical matter, all the Assistant U.S. Attorney would have to do is direct that duplicates be made, then put on witnesses as to the duplication process. The duplicated data would then be admissible. (Of course, as a practical matter, only "duplicates" would ever be admitted into evidence--the actual hard disk would almost certainly NOT be admitted into evidence, since its mere presence is not evidence of of its content.) >That's one reason why, when something is under investigation, they >continue to hold the system long after the search warrant has been >executed -- if an indictment is brought later, they need the system as >evidence in the trial. If a challenge is made by the defendant about >the material introduced as evidence, the prosecution needs to be able >to fire up the system in the courtroom to prove their point. They need to do this about as often as they need to drive cars into the courtroom to demonstrate getaway tactics. Even if the prosecution anticipates that there will be a dispute over the provenance of any duplicates made, it hardly prevents the U.S. Attorney's office from giving the defendant *duplicates* of the siezed information. And few if any judges will sustain an objection over the prosecution's expert testimony showing chain of custody. Moreover, Spafford's comment does not address the First, Fourth, and Fifth Amendment implications of seizure of a *non*-defendant's property. >(I'm told that the normal course of prosecution is such that it may >take upwards of 2 years for an indictment to be made. Thus, the >equipment needs to be held all that time. This is a hardship for the >defendant, but not at all unusual -- cases involving the seizure of >cars, boats, printing presses (in counterfeiting cases), business >records and so on often result in in the material being held for >similar lengths of time. The belief is that it is more important to >preserve the evidence to allow you to challenge it in court than it is >to return it to you quickly.) It is also believed that any pressure brought to bear on the defendant provides additional motivation for plea bargains. >Certainly, the prosecution could produce the experts to claim that a >copy was a true and accurate copy, but the defense could have a lot of >fun trying to cast doubt in the jury's minds by holding up 3.5" floopy >disks and pointing at mounds of printouts and asking the experts to >explain how they know it's a true copy, and how all that data is >encoded, and how the know the software is correct and.... Ever try >explaining all that to someone who is doesn't know about computers and >may be mildlu computer-phobic? I do not share Spafford's contempt for juries. Juries have managed to learn and make decisions about complex matters since the beginning of the Republic. And the fact that a 3.5-inch floppy disk can hold the equivalent of pages and pages of text is not a complex matter; I defy you, Spafford, to find a single potential juror who would have trouble believing that such a disk could hold that much data, once you assured him that it could. >Now imagine explaining that to a jury >of 12 similar people and convincing them beyond any reasonable doubt. This is no great challenge. >(I'm also told {and have seen} that the law enforcement >agencies have very limited equipment resources, and the only way they >can be sure to have a printer that works with the hardware/software on >the confiscated system is to take the printer that's already >attached.) So we're too believe that the Feds have to keep Steve Jackson's LaserJet because the federal government can't afford one of its own? Been down to the federal courthouse lately, Gene? Back when I was a law clerk, I used to visit it all the time. Amazingly, they seem able to afford all sorts of equipment. >(Someone made a snide comment earlier about SJ Games' laser printer >being taken. It is my understanding that the above rationale is >standard practice with the Feds. If you look in the NIJ (National >Institutes of Justice) handbooks and similar texts on organizing >computer crime investigation, you will see the same thing given as >advice to local law enforcement types. If you don't like it, contact >your Congress-criter about amendments to the Federal rules of evidence >-- don't continue to abuse me for reporting information that I have >spent time researching.) Your research is minimal, so far as I can tell. Example: the NIJ handbooks are *not statutory law*. You don't need to have your Congressman amend the Federal Rules of Evidence to change the handbook provisions. Rather than take Spafford's "researching" at face value, I advise readers of this conference to take a look at legal scholarship concerning the Best Evidence Rule. A good place to start is Cleary and Strong, "The Best Evidence Rule: An Evaluation in Context," 51 Iowa L.Review 825, 1966. The authors note, inter alia, that the need for strict readings of the Best Evidence Rule has been reduced by modern legal procedures as well as by modern technology. --Mike Mike Godwin, UT Law School | "We need a new cosmology. mnemonic@ccwf.cc.utexas.edu | New Gods. New Sacraments. (512) 346-4190 | Another drink." | --Patti Smith