Admissibility of Evidence

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• governed by Federal Rules of Evidence (FRE)
• states also have rules of evidence
• Evidence can be:
  • Inculpatory
    • supports or confirms a given theory
  • exculpatory
    • rebuts or contradicts a given theory
• Sedona Principles for Addressing Electronic Document Production is the best-known resource for how to properly use electronic evidence in legal proceedings

The Fruit of The Poisonous Tree Doctrine

• the doctrine prevents the government from using illegally gathered evidence at a criminal trial
• prevents the government from using any legally gathered evidence that it obtained because of the illegally gathered evidence

Types of Digital Evidence

• Computer-generated records
  • output of computer programs
  • created automatically by a computer program or process
• Records created by people and stored electronically
  • created by people
  • includes files, pictures, images, spreadsheets, and other documents
  • can include internet browsing history

Digital Evidence Admissibility Requirements

• Lawfully gathered
• Relevant
  • also called probative evidence
  • FRE say that evidence is relevant if it makes “the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
• Authentic and reliable

Hearsay Rule

Hearsay rule says that a witness cannot testify about what someone else told them, except under specific exceptions.

Hearsay is any out-of-court statement that is made by a person that is offered to prove some issue in a case.

• not usually made under oath
• sometimes offered by parties at trial when there are no direct witnesses available to testify
• E.g.,
  • gossip
  • news reporter statements from anonymous source
• not admissible unless specific exception applies
• computer-generated records, the logs and output of computer programs, are not hearsay
  • cannot introduce logs into evidence unless they are authenticated by the system administrator
• Computer records that might be hearsay contain assertions by people
  • documents and files, bookkeeping records, and records of transactions that are entered by people
  • party must show that the document is admissible because of a hearsay exception
  • Records created in the ordinary course of business are often admissible

The Best Evidence Rule

The best evidence rule requires that original documents be used at trial to ensure that evidence is reliable and authentic.

• required by FRE
• original digital evidence is almost never in a readable form
• FRE makes an exception:
  • an accurate printout of computerized data is an original for purposes of the rule

Parol Evidence Rule

The parol evidence rule states that if two parties enter into a written agreement, that written document is assumed to contain all the terms of the agreement.