Response to:-
Tim Chown wrote:
> ".................
>
> The bulk eraser bit is interesting, and the suggestion that re-recording
> over old tapes is not accpetible in court.
>
> If data is gathered digitally, and a file system is a dynamic set of
> 0's and 1's, does every captured image have to be recorded on a freshly
> formatted file system? Yikes."
Just because a tape has been recorded over does not affect its
admissibility in English Courts as a source of the information it
contains.
The main issue now with digital/electronic evidence in English courts is
proving 1) the reliability of the tape as a source of information and 2)
the reliability of the information it contains. This assumes the
information is also relevant to the issues in dispute and to
establishing the facts.
Evidence is just information used to determine which of disputed facts
are true.
There is no legal reason why a re-recorded tape should not be admissible
as evidence. The only question is whether it can be demonstrated that
the information it contains is reliable. That can be achieved through a
combination of precautions. This is not just an issue of showing that
the tape was not tampered with.
For a detailed analysis of the essential nature of evidence and what
'reliability' is in the context of electronic evidence see either:-
- 'Electronic Evidence - Can You Prove the Transaction Took Place?'
The Computer Lawyer Vol 9 No 5 May 1992 (Prentice Hall Law & Business)
- 'Computer-generated Evidence - Implications for the Corporate
Computer User - Part 1' - Computer Law & Practice Vol 6 No 6 pages
177-212 July-August 1990.
If anyone wants a copy in a compact electronic .pdf format I can send
it.
The above references are for the same article published in US and
English law journals. The first version is a shorter edited version of
the other.
The articles are and will remain valid in relation to the legal concept
of evidential reliability.
The English criminal and civil law has changed dramatically since they
were written, by abolishing the hearsay rule and introducing a more
favourable regime for admissibility of electronic (and other kinds) of
vidence in legal proceedings. But be warned, if you cannot show your
electronic evidence is reliable you can face difficulties, especially in
criminal proceedings.
These articles (by me) have been favourably commented on and arose from
teaching the law of evidence as part of and examining a compulsory
course for Imperial College's BEng Masters degree course in Software
Engineering some while ago.
--
From:
Clifford G. Miller
CLIFFORD MILLER
Coborn House
Coborn Road
London E3 2DA
England
http://www.millercompany.demon.co.uk
Tel: + 44 181 983 6688
Fax: + 44 181 983 6699
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