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Computer Related Evidence New
Computer Related Evidence New
RELATED
EVIDENCE
Some of the earliest issues of this type arose from business records.
Many businesses kept copies of records such as receipts and other documents.
The original was given to a customer and a copy, usually a carbon copy, was
kept in the businesss file.
Later, when questions of best evidence arose, the business owner merely
pointed to specific exceptions in the law for support of the records.
Many of the early decisions arising in computer cases, and the records or
copies kept on computers, focused on these same principles.
Specifically, the rules required the prosecutor to show that the record was
made "at or near the time by, or from information transmitted by, a person with
knowledge. . . ."
"evidence" includes-(a) all statements which the court permits or requires to be made
before it by witnesses in relation to matters of fact under inquiry:
such statements are called oral evidence;
(b) all documents produced for the inspection of the court: such
documents are called documentary evidence;
3. INTERPRETATION
"document" means any matter expressed, described, or howsoever represented,
upon any substance, material, thing or article, including any matter embodied in
a disc, tape, film, sound track or other device whatsoever, by means of-(a) letters, figures, marks, symbols, signals, signs, or other forms of expression,
description, or representation whatsoever;
(b) any visual recording (whether of still or moving images);
ILLUSTRATIONS
A writing is a document.
Words printed, lithographed or photographed are documents.
A map, plan, graph or sketch is a document.
computer
means
an
electronic,
magnetic,
optical,
electrochemical, or other data processing device, or a group of such
interconnected or related devices, performing logical, arithmetic,
storage and display functions, and includes any data storage facility
or communications facility directly related to or operating in
conjunction with such device or group of such interconnected or
related devices, but does not include an automated typewriter or
typesetter, or a portable hand held calculator or other similar device
which is non-programmable or which does not contain any data
storage facility;
["computer" Subs. Act A1432 of the year 2012]
Secondary evidence includes-(a) certified copies given under the provisions hereinafter
contained;
(b) copies made from the original by mechanical processes,
which in themselves ensure the accuracy of the copy, and
copies compared with such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did
not execute them;
(e) oral accounts of the contents of a document given by some
person who has himself seen or heard it or perceived it by
whatever means.
Of course, the obvious reason we would deal with the copy rather
than the original is safety.
Analyzing and manipulating an original file puts that file in
jeopardy.
So investigators often rely on the use of copies rather than the
original.
What this means is that even while the common law best evidence
rule appears to be alive and kicking it has been substantially
abbreviated by the rules of evidence.
Questions of admissibility turn not on whether the data before a
court is on a hard-drive, duplicate floppy disk, or a printout, but
instead on whether the original data is authentic and whether any
copies offered are accurate.
AUTHENTICATING
ELECTRONIC DOCUMENTS
The fact that the original picture was digital made the
authentication even more difficult.
At this point digital photography is still not as good as film
photography.
And where a medium grade digital camera was used the
"bitmap" photograph can be easily altered.
How, then, is a photograph such as this authenticated?
When dealing with the chain of evidence the first rule for
investigators is to document clearly all who have had contact with
the evidence.
This is traditionally done with a pen and paper log kept with
the evidence or maintained by an "evidence officer."
The evidence officer on a crime scene is responsible for
logging all evidence, seized and otherwise, and securing that
which is taken.
When data goes into computers, there are many methods and forms
for getting it out.
To the extent that computers simply store information for later
retrieval, a data printout may qualify as an original document.
Where the computer has merely acted as a technological file
cabinet, lawyers must be ready to authenticate the in-court version
of the document as genuine, but the evidentiary issues (at least
those connected to the computer) do not pertain to the substance or
content of the document
The fact that the computer system has changed in some way does not make
the resulting product inadmissible, but it does require another analytical step.
The computer processing itself may in fact create a new file structure or
other document.
6. File Catalog
The files stored on the computer hard disk drive(s) and floppy
diskettes should be listed and cataloged. The dates and times that the
files were created and/or updated should also be recorded. Many times
relevant leads can be obtained through the sorting of the files by file
date and time. The combination of such information from multiple
computers seized as evidence in the same case can also prove valuable
for leads. Such information can be helpful in documenting a
conspiracy when sorted file dates and times are evaluated.
7. Software Licensing
All too often, law enforcement agencies are under funded when it
comes to the purchase of computers and software. Often this
translates into law enforcement computer specialists being forced to
use software that they did not purchase in the processing of
computer related evidence. If this practice is discovered by the
defense lawyer through legal discovery or during trial, the case can
be lost. Worse yet, the reputation and credibility of the law
enforcement computer specialists can be tarnished forever. Such
problems should be avoided at all costs. The essential software tools
used in computer evidence processing are relatively inexpensive and
some software companies support law enforcement agencies with
free and discounted forensic software. Be sure that you are licensed
to use the software and document that fact in your reports. Also, be
sure to register your software with the software publisher after
purchase. Smart defense lawyers will contact the software publishers
involved and verify that you are a licensed user of their software.