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|Part of the common law series|
|Types of evidence|
|Hearsay and exceptions|
|Other common law areas|
Digital evidence or electronic 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.
The use of digital evidence has increased in the past few decades as courts have allowed the use of e-mails, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories, databases, the contents of computer memory, computer backups, computer printouts, Global Positioning System tracks, logs from a hotel’s electronic door locks, and digital video or audio files.
Many courts in the United States have applied the Federal Rules of Evidence to digital evidence in a similar way to traditional documents, although important differences such as the lack of established standards and procedures have been noted. In addition, digital evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive, and more readily available. As such, some courts have sometimes treated digital evidence differently for purposes of authentication, hearsay, the best evidence rule, and privilege. In December 2006, strict new rules were enacted within the Federal Rules of Civil Procedure requiring the preservation and disclosure of electronically stored evidence. Digital evidence is often attacked for its authenticity due to the ease with which it can be modified, although courts are beginning to reject this argument without proof of tampering.
Digital evidence is often ruled inadmissible by courts because it was obtained without authorization. In most jurisdictions a warrant is required to seize and investigate digital devices. In a digital investigation this can present problems where, for example, evidence of other crimes are identified while investigating another. During a 1999 investigation into online harassment by Keith Schroeder investigators found pornographic images of children on his computer. A second warrant had to be obtained before the evidence could be used to charge Schroeder.
As with any evidence, the proponent of digital evidence must lay the proper foundation. Courts largely concerned themselves with the reliability of such digital evidence. As such, early court decisions required that authentication called "for a more comprehensive foundation." US v. Scholle, 553 F.2d 1109 (8th Cir. 1976). As courts became more familiar with digital documents, they backed away from the higher standard and have since held that "computer data compilations… should be treated as any other record." US v. Vela, 673 F.2d 86, 90 (5th Cir. 1982).
A common attack on digital evidence is that digital media can be easily altered. However, in 2002 a US court ruled that "the fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness" (US v. Bonallo, 858 F. 2d 1427 - 1988 - Court of Appeals, 9th).
Nevertheless, the "more comprehensive" foundation required by Scholle remains good practice. The American Law Reports lists a number of ways to establish the comprehensive foundation. It suggests that the proponent demonstrate "the reliability of the computer equipment", "the manner in which the basic data was initially entered", "the measures taken to ensure the accuracy of the data as entered", "the method of storing the data and the precautions taken to prevent its loss", "the reliability of the computer programs used to process the data", and "the measures taken to verify the accuracy of the program". 7 American Law Reports 4th, 8, 2b.
In its turn it gave rise to a breed of commercial software technology solutions designed to preserve digital evidence in its original form and to authenticate it for admissibility in disputes and in court. One of the examples is OnLock Digital Authentication, a software-as-a-service solution for preservation and authentication of digital evidence in a non-edit environment. Such software solutions aim at enhancing the legal value of digital evidence as well as at maximizing the admissibility of the evidence at trial.
UK ACPO guidelines
In the United Kingdom, examiners usually follow guidelines issued by the Association of Chief Police Officers (ACPO) for the authentication and integrity of evidence. They were updated to Version 5 in October 2011 when computer based evidence was replaced with digital evidence reflecting the development of investigating cyber security incidents in a wider context. The guidelines consist of four principles:
Principle 1: No action taken by law enforcement agencies, persons employed within those agencies or their agents should change data which may subsequently be relied upon in court.
Principle 2: In circumstances where a person finds it necessary to access original data, that person must be competent to do so and be able to give evidence explaining the relevance and the implications of their actions.
Principle 3: An audit trail or other record of all processes applied to digital evidence should be created and preserved. An independent third party should be able to examine those processes and achieve the same result.
Principle 4: The person in charge of the investigation has overall responsibility for ensuring that the law and these principles are adhered to.
These guidelines are widely accepted in courts of England and Scotland, but they do not constitute a legal requirement and their use is voluntary. It is arguable that whilst voluntary, non adherence is almost certain to lead to the exclusion of evidence that does not comply subject to the provisions of s.76 Police and Criminal Evidence Act 1984 (Power to exclude evidence obtained unfairly)
Building on the ACPO Guidelines with a more generic application outside of law enforcement, then Murdoch University student Richard Brian Adams proposed, in his dissertation, the following overriding principles to be followed by digital forensic practitioners:
- The activities of the digital forensic practitioner should not alter the original data. If the requirements of the work mean that this is not possible then the effect of the practitioner’s actions on the original data should be clearly identified and the process that caused any changes justified.
- A complete record of all activities associated with the acquisition and handling of the original data and any copies of the original data must be maintained. This includes compliance with the appropriate rules of evidence, such as maintaining a chain of custody record, and verification processes such as hashing.
- The digital forensic practitioner must not undertake any activities which are beyond their ability or knowledge.
- The digital forensic practitioner must take into consideration all aspects of personal and equipment safety whilst undertaking their work.
- At all times the legal rights of anyone affected by your actions should be considered.
- The practitioner must be aware of all organisational policies and procedures relating to their activities
- Communication must be maintained as appropriate with the client, legal practitioners, supervisors and other team members
Best evidence rule
Digital evidence is almost never in a format readable by humans, requiring additional steps to include digital documents as evidence (i.e. printing out the material). It has been argued that this change of format may mean digital evidence does not qualify under the "best evidence rule". However, the "Federal Rules of Evidence" rule 1001(3) states "if data are stored in a computer…, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’"
Commonly courts do not bar printouts under the best evidence rule. In Aguimatang v. California State Lottery, the court gave near per se treatment to the admissibility of digital evidence stating "the computer printout does not violate the best evidence rule, because a computer printout is considered an ‘original.’" 234 Cal. App. 3d 769, 798.
First, there is some digital evidence which is not hearsay at all. Hearsay is a "statement, other than one made by the declarant while testifying at the trial… offered in evidence to prove the truth of the matter asserted." A declarant is a person. Therefore, courts have held that digital evidence is not hearsay when it is "the by-product of a machine operation which uses for its input ‘statements’ entered into the machine" and was "was generated solely by the electrical and mechanical operations of the computer and telephone equipment." State v. Armstead, 432 So.2d 837, 839 (La. 1983).
Moreover, where the evidence is not offered to prove the truth of the statements, digital evidence is not hearsay. This is the case, for example, with logs of chatroom conversations. While a chatroom log may contain many out of court statements, which would otherwise be hearsay, they may be used for other purposes, including as a party admission. US v. Simpson, 152 F.3s 1241 (10th Cir. 1998).
Second, hearsay recognizes a number of exceptions. Most frequently, proponents of digital evidence seek admission under the business records exception. This perhaps is because the definition of business records includes a "data compilation." FRE 803(6). However, obviously not every piece of digital evidence is a business record. Such reliance on the business records exception has had bad results for its proponents. In Monotype Corp. PLC v. International Typeface Corp, the plaintiffs relied on the business records exception to attempt to admit two e-mails as evidence that the defendants had infringed their copyright only to have it excluded by the court. 43 F.3d 443 (9th Cir. 1994). The court noted that the e-mail was not created "in the regular course of [the third party’s] business."
Other proponents have had success with the public records exception, excited utterance, Present sense impression, and the FRE 807—the catch-all. Where digital evidence does not meet one of the other exceptions but has "equivalent circumstantial guarantees of trustworthiness" that hearsay seeks to protect against, a court may apply the catch-all.
- Casey, Eoghan (2004). Digital Evidence and Computer Crime, Second Edition. Elsevier. ISBN 0-12-163104-4.
- Various (2009). Eoghan Casey, ed. Handbook of Digital Forensics and Investigation. Academic Press. p. 567. ISBN 0-12-374267-6. Retrieved 2 September 2010.
- Adams, Richard (2012). "'The Advanced Data Acquisition Model (ADAM): A process model for digital forensic practice".
- Daniel J. Ryan; Gal Shpantzer. "Legal Aspects of Digital Forensics". Retrieved 31 August 2010.
- "State v. Schroeder, 613 NW 2d 911 - Wis: Court of Appeals 2000". 2000.
- "US v. Bonallo". Court of Appeals, 9th Circuit. 1988. Retrieved 1 September 2010.
- Pollitt, MM. "Report on digital evidence". CiteSeerX: 10.1.1.80.1663.
- "ACPO Good Practice Guide for Digital Evidence". Retrieved 17 June 2013.
- "Federal Rules of Evidence #702". Retrieved 23 August 2010.
- Stephen Mason, general editor, Electronic Evidence (3rd edn, LexisNexis Butterworths, 2012) covering Australia, Canada, England & Wales, European Union, Hong Kong, India, Ireland, New Zealand, Scotland, Singapore, South Africa, United States of America
- Stephen Mason, general editor, International Electronic Evidence, (British Institute of International and Comparative Law, 2008), covering Argentina, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Thailand and Turkey
- Allison Stanfield Computer forensics, electronic discovery and electronic evidence
- Daniel M. Scanlan, "Digital Evidence in Criminal Law" (Thomson Reuters Canada Limited, 2011)
United States of America on discovery and evidence:
- Michael R Arkfeld, Arkfeld on Electronic Discovery and Evidence (3rd edn, Lexis, 2011) Looseleaf
- Adam I. Cohen and David J. Lender, Electronic Discovery: Law and Practice (2nd end, Aspen Publishers, 2011) Looseleaf
- Jay E. Grenig, William C. Gleisner, Troy Larson and John L. Carroll, eDiscovery & Digital Evidence (2nd edn, Westlaw, 2011) Looseleaf
- Michele C.S. Lange and Kristen M. Nimsger, Electronic Evidence and Discovery: What Every Lawyer Should Know (2nd edn, American Bar Association, 2009)
- George L. Paul, Foundations of Digital Evidence (American Bar Association, 2008)
- Paul R. Rice, Electronic Evidence - Law and Practice (American Bar Association, 2005)
United States of America on discovery:
- Brent E. Kidwell, Matthew M. Neumeier and Brian D. Hansen, Electronic Discovery (Law Journal Press) Looseleaf
- Joan E. Feldman, Essentials of Electronic Discovery: Finding and Using Cyber Evidence (Glasser Legalworks, 2003)
- Sharon Nelson, Bruce A. Olson and John W. Simek, The Electronic Evidence and Discovery Handbook (American Bar Association, 2006)
- Ralph C. Losey, e-Discovery: New Ideas, Case Law, Trends and Practices (Westlaw, 2010)
United States of America on visual evidence:
- Gregory P. Joseph, Modern Visual Evidence (Law Journal Press) Looseleaf
- Jonathan D. Frieden and Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence, XVII Rich. J.L. & Tech. 5 (2011).
- Computer and Digital Forensics Discussion Forum
- International Journal of Digital Evidence (IJDE)
- International Organization on Computer Evidence (IOCE)
- Scientific Group on Digital Evidence
- Digital Evidence: Standards and Principles
- The Digital Evidence in the Information Era
- Forensic IT group of ENFSI
- Digital Evidence and Electronic Signature Law Review (Free open source)
- Commercial Technology for Preservation and Authentication of Electronically Stored Evidence