In the matter Griffin v. State, 2011 Maryland, the defendant Antoine “Boozy” Griffin was charged with murder. In the second trial (first was a mistrial), a witness claimed he was threatened by the defendant’s girlfriend. As evidence, the State submitted the girlfriend’s MySpace page. The girlfriend’s alleged page gave her hometown, birthday, and other personal information. In testimony, an officer stated that he believed it to be the girlfriend’s legitimate account because of the information and pictures on the account. In addition there was a posting that said “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
The trial judge admitted the evidence.
On appeal, the Maryland Court of Appeals reversed defendant’s conviction. Some of the commentary of the higher court included… “Anyone can create a fictitious account and masquerade under another person’s name, or gain access to another’s account by obtaining the user’s username and password.”
The Court chastised the State for not:
- Questioning the girlfriend about the post
- Examining the girlfriend’s computer
- Contacting MySpace for more information about the account
The manner in which digital evidence is collected may matter less than who is collecting it, and what is being documented. The evidence must be authenticated.
In other words, can the individual securing the evidence testify to what he or she did when collecting the evidence? If the evidence is not an exact clone, is it an accurate and true representation of the original? Was the collection properly and thoroughly documented?
If you cannot answer yes to these questions, your evidence is likely inadmissible.
Use the FRE, FRCP and State Laws as a Guide to Evidence Admissibility
The Federal Rules of Evidence (FRE) were codified in 1975 with the intention of assisting and guiding parties and courts, in both civil and criminal matters, on the admission of evidence. In civil matters, the Federal Rules of Civil Procedure (FRCP) also addresses the manner in which facts or tangible items are admitted as evidence.
The FRCP provides guidance to parties and judges operating within the Federal court system. Many state courts have adopted rules that mimic the FRCP, or vary slightly. In addition to the FRE and the FRCP, courts still rely heavily on case law and opinions issued by the courts for guidance.
This post provides an overview of the various rules in the FRE, the FRCP, and state evidence laws as they relate to the admission of evidence.
Is Your Evidence Relevant?
There is little difference in the mind of the court between a file stored in a computer and one stored in a filing cabinet. The manner in which they exist and how they are handled may differ, but if relevant, they are both defined as evidence.
Federal Rules of Evidence 401 and 402 relate to relevant evidence and the admissibility of that evidence. In short, relevant information is generally admissible, while irrelevant evidence is not.
FRCP Rule 26(b)(1) addresses the relevant information or items that can be sought and obtained barring claims of privilege.
The Rule states ”Unless otherwise limited by court order, the scope of discovery is as follows:
- Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.
- For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
- Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” (emphasis added)
For the most part, states use the FRE as a guide for determining the admissibility of digital evidence. For example, the test in New York for relevancy is substantially the same as the FRE. New York courts deem evidence as relevant if it has any tendency in reason to prove the existence of any material fact; i.e. it makes determination of the action more probable or less probable than it would be without the evidence.
Is Your Relevant Evidence Admissible?
Even if a piece of evidence is relevant to your case, it still may not be admissible in court. There are various factors to consider when determining if a piece of evidence is admissible.
There are protections under FRE 501 and 502 dealing specifically with information that is relevant, but privileged. Rule 502 deals with the inadvertent disclosure of privileged information and how the action does not necessarily waive privilege. The Rule is aimed at relieving some of the burden of privilege review. Without the high risk of disclosing privileged information looming over their heads, litigants have been able to reduce the time and costs spent on review.
Rule 802 of the FRE is the hearsay rule. It states that “Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress”. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Digital evidence skirts the hearsay rule through the use of one of the many hearsay exceptions.
Rule 803(6) and 803(7) provide exceptions to the hearsay rule permitting the admission of evidence if the source of the records is sufficiently reliable. For example, digital records may be admissible if there is an expert that can testify that the evidence is the product of reliable principles and methods, which ties into **Rule 702 and expert testimony**. Digital records may also be admissible if there is evidence that the collection of information is done solely by a computer without any human interaction, such as web logs or a cache of a chat conversation.
New York State’s adaptations of FRE and FRCP rules is known as the Civil Practice Law and Rules. The CPLR has also created some exceptions that allow hearsay evidence to be admissible.
As long as the evidence is proven reliable and is part of regularly recorded business records than it is admissible in court. “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record.”
To qualify for this business record exception the evidence must meet certain criteria:
- The record must have been made and kept in the regular course of business
- It must have been the duty of the employee to make and to keep the record
- The record must concern matters within the scope of business
- The entry must have been made at or near the event described
- Someone in the business must have had personal knowledge of the fact reported.
Some examples of digital evidence that could potentially apply to the business exception rule are:
- Spreadsheets used for business purposes
- An IT staff member identifying a computer or laptop as belonging to an individual
- Computer records and copies printed out for use at trial qualify as business records (provided the printout is of a record regularly kept and used in the organization business).
One could argue that a print out of a computer record or file is as good as the original, which leads to the topic of best evidence.
FRE 1002 – Best Evidence Rule
The best evidence rule provides guidance and framework for the admissibility of digital evidence. This rule requires that whenever a party seeks to prove the contents of a writing, recording or photograph, the original needs to be produced. If the original cannot be produced, a satisfactory explanation is required.
CPLR 4539(a) – Accurate Reproductions
As an exception to the best evidence rule this rule states that that accurate reproductions made in the regular course of business are as admissible in evidence as the original, whether the original is in existence or not. Therefore, an expert forensic imaging a hard drive would then be in possession of best evidence if that computer or laptop that was imaged continued to be used.
CPLR 4539(b) – Process for Storing Images
Provides that any process for storing images that leaves a record of any additions, deletions, or changes shall also be admissible as the original. Under 4539 it is not necessary to establish that the reproduction was compared to the original and found to be accurate so long as it is identified as the product of an accurate copying process.
Can You Authenticate Your Evidence?
Evidence cannot be submitted if it is not authenticated. Rule 901 addresses authentication of evidence. There are a number of sections in Rule 901 that can be applied to the admissibility and authentication of digital evidence.
901(a) states “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Simply put, is there good reason to believe that the evidence is what the person submitting it says it is?
FRE 901(b)(1) – Testimony of witness with knowledge.
“Testimony that a matter is what it is claimed to be.” If an individual is the author of an email and states so in testimony that email is then admissible.
FRE 901(b)(3) – Comparison by trier or expert witness.
Rule 901(b)(3) states “Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.” An expert witness can testify to the digital evidence that was collected and analyzed, therefore making it admissible in court.
FRE 901(b)(8) – Data Compilation
Rule 901 (b)(8) states “Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, (C) has been in existence 20 years or more at the time it is offered.”
Is there reason to believe the data compilation or digital evidence is authentic or if there no suspicion concerning its authenticity, then the evidence is admissible.
FRE 901(b)(9) – Validation of Collection Process
Rule 901 (b)(9) states “Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” For example, if a computer forensic expert can testify about the validity of the process used to image or collect the digital evidence then it can be deemed admissible.
The statutes and rules surrounding the admissibility of evidence in both state and federal court have stood the test of time. There have been slight modifications throughout the years to keep up with technology, but for the most part—and as far as state and federal rules are concerned—digital evidence is the same as any other physical evidence. The sheer volume of ESI can cause angst during discovery, but determining whether it is admissible is no different than making that determination for any other type of evidence.
Attract & Retain Top Talent
With a rapidly changing industry, it's vital to offer the right compensation and set the right expectation. With our Salary Guide, get detailed job descriptions, industry insights and local salary data to equip your managers with hiring confidence and expertise.Get your copy »