Counsel's Advise on Evidence - Essay Example

Counsels Advise on Evidence Counsels Advise on Evidence Introduction Admissibility is quality or character which any material presented in a court of law as evidence must possess before the same can be allowed to be to be introduced in court as evidence. The images and photographs in this case must possess the required qualities so that they can act as evidence in a court of law. In this computer era, the nature of photography is necessary to determine the applicable rules of evidence. The nature of photography may be either digital or analogue. But before going deeper into this it is important to know that there are two main requirements for acceptance of any form of photography as evidence. These are relevance and authentication. The rule of relevance is a general rule for admissibility in evidence and what amounts to relevance is determined at the discretion of each judge (Hugh, 2003, p. 67). A chain of custody which includes the chain of the undeveloped film will in some rare cases be required. In some other cases, where the photograph is offered for its truth and forms the basis of issue in the case, then the best evidence rule applies. However, the most important of all these requirements is authentication. The party who introduces any form of photography must be ready to testify that the photography is correct and accurate unless the piece of photography is accepted by stipulation of the parties. The concern of the solicitors in this case is on the surveillance and monitoring where the digital images can be processed with ease. Admissibility on the account of authenticity is an issue that needs to be addressed in this case. Digital images are stored in binary format in the memory of a computer. This means like any other date they can be easily processed. The result is that even where there are no pictures taken they can be processed in the same manner modern films are processed so as to achieve the dramatic effects. Law of evidence on admissibility of photography First and foremost the admissibility of any form of images and photographs will be determined by the general rules of admissibility of evidence. The first principle requirement is therefore relevance and reliability. For the images to be relevant they must tend to be proving or disapproving of some fact which is in issue (Tapper, 2010, p. 121). However, where the evidence of the photographs causes the court to be prejudiced against the party to whom it is introduced against and it outweighs the utility of the evidence, then such evidence is not admissible. The evidence of images and photographs may also be inadmissible on the grounds of public policy. The evidence of the images must also be reliable enough for it to be admitted. The party that offers the evidence must be able to show that its source makes it reliable. In the case of the images and photographs it is important to show that the specific place displayed is relevant. For example, in this case it is important to show that the photographs displayed the alleged crime scene. Other things that come in question are if the evidence of the source is in form of a witness. For example the credibility of the witness comes in picture and the party introducing the images as evidence must be able show that the witness is credible and that he has knowledge of the things that he is attesting to. Authenticity of the photography is core to admissibility of the same as evidence. The testimony that the photograph is correct and accurate does not necessary have to be the testimony of the photographer (Keenan, 2007, p. 86). Any person who can accurately testify that the scene is familiar suffices as a qualified witness. Some courts will presume that a photograph is authentic or self –authenticating. Where the authenticity of photography is questioned then it is a question to be determined by the court. The threshold requirement for admissibility of photography is very low and photography is routinely admitted as evidence without much scrutiny. However the existing doctrine is a reasonable protection to the high risk which can be caused by the misleading conventional photographs. An inquiry into the relevance of a piece of photography is meant to help the trial court avoid confusion or deception. This is inquiry into the reliance of a piece of photography is necessary even where the same is probative. On the other hand the requirement for authenticity helps to guard against fraud while the requirement for chain of custody serves as additional insurance. The best evidence rule may require the original negative and it serves also as a protection from fraud. This rule may not be applicable in the contemporary computer era which has seen the advent of digital videos and pictures especially from the CCTV cameras. Thus as described above the rule of evidence on admissibility of photographs largely depends on whether the photographs were digital or analogue. So in this case the instructing solicitor must be able to determine the nature of photography. Having seen that the rule of evidence on admissibility of images depends on the nature of the images, it is important to understand what digital images are before looking at the current status of the law. A video or a photograph is digital if it can be viewed from a medium such as a television, CCTV monitor or computer monitor and is stored in binary format in memory. This is contrasted to analogue images which are captured in some physical recording medium. The advent of computer has created definitional problems and complexities to the evidence rules on admissibility of photography. These problems to a large degree are direct result inherent qualities of digital data. According to Michael D. Scott (2008, p. 128), it is very easy to modify and manipulate the electronic impulses and as such this is very hostile to a legal system of tangible evidence. In Perma Research and Dev. Co. v. Singer Co. the court emphasized this in the words, “….as one of the many who have received computerized bills and dunning letters for accounts long since paid, I am not prepared to accept the product of a computer as the equivalent of Holy Writ.” However there are no clear rules with evidence of digital data and no matter what principle has been applied to justify admissibility of digital data, it must satisfy the best evidence requirement as it is offered for its truth forming the basis controlling issue in the case at hand. Just like a proponent of any other type of evidence a proponent of digital evidence is required to lay a proper foundation. Early court’s decisions required that the foundation be more comprehensive for digital evidence. Courts often ruled digital evidence as inadmissible where it has been obtained without authorization. As more people embraced the use of digital data courts slowly started to back away from the high standard and held digital data admissible like any other form of evidence. In United Kingdom the guidelines for authentication were issued by Association of the Chief Police Officer. The four principles contained in the guidelines are as follows; one, the law enforcement agencies and their agent should not change any data held in a storage media or a computer if it is to be subsequently relied on in court. Secondly, in exceptional circumstance a person may be allowed to access the original data stored in a computer and such person must be competent and further that person must be able to give evidence of the reliability of such on such data. Thirdly, it is necessary to create and preserve an audit trail of all the processes that have been applied to the digital evidence. Lastly, the investigating officer should ensure that these guidelines are followed. The courts of England have widely accepted these guidelines though they are not the law. Courts often fail to admit digital evidence on the basis of non-authorization. However authorization is not an issue in this case as the investigators were the authorities. The British standards institutions are concerned with authenticity of integrity authenticity and the availability of electronic data. Its code of practice encourages the best practice and chain of custody requirement for all electronic data. The unique status of digital evidence has been recognized by courts and case law has started forming precedent. Thus digital photography just as the digital data presents a profound problem of authenticity and as such a challenge to the rules of evidence. In this case admissibility of any form of images or photographs is based on two main requirements mainly relevance and authenticity. The ordinary rules of admissibility require that the images or photographs be relevant to the issue. As it was in this case the images and photographs were clearly from the scene of crime as they were captured by the CCTV footage and to other video and photographs of the demonstration. Therefore, the issues of the relevance of the images in this case would not be so much a contentious issue. Relevance of piece evidence indicates the fact the evidence tends to prove the issue at hand. In this case the issue at hand was whether Mark was at the scene of crime. As such any photographs taken from this scene would be relevant in proving that Mark was at the scene of crime and that he committed the crime. Challenging relevance of the images in this case would prove difficult to the instructing solicitors. The contentious issue on admissibility of the images and the photographs would be authenticity of the photographs. This could be a loophole that the instructing solicitors would need to rely on to challenge the admissibility of the evidence of the photographs, videos and CCTV footage. It is very difficult to prove that a digital image is authentic. This is because of the fact that it is very easy to manipulate and interfere with the any digital data. It is law that the party wishing to rely on the evidence of the images and photographs in this case has to prove that the material is authentic and not a forgery. A greater advantage of disapproving the authenticity of the images lies on the instructing solicitors if the images were digital. The testimony that a photography is correct and accurate my too be challenged. First and foremost the instructing solicitors should know that the existing United Kingdom legislations for example the United Kingdom Criminal Evidence Act clearly shows that evidence of digital images is admissible in the in the courts as long as they are properly authenticated. The Evidence Act of the United Kingdom provides under section 41.4 provides; “…………..Despite any rule to the contrary, an electronic court document is admissible in evidence unless, on cause shown before the court, the court has reason to doubt the integrity of the electronic court document, either because reliable encryption techniques were not used to support the making of the electronic court document or for another reason………” From the previous decisions it is clear that technological authentication is not a requirement in respect of admissibility of digital images and photography although technological authentication of digital images may increase the weight of evidence. The only necessary requirement as per the law is to produce founding testimony about the source and authenticity of any images or photographs (Oliphan, 2005, p. 104). Section 69 of the Police and Criminal Evidence Act of 1984 provides for any computer record and as such applies to digital videos and photographs. Section 69 only requires the person who is responsible for the computer system to certify any images produced as evidence. Thus it can be inferred that the section is not concerned with the accuracy of the digital evidence but positive response that there was proper processing, storage and reproduction of the digital information whatever it is. Section 71 of the same Act provides that microfilms for a part or the whole of a document can be adduced as evidence as long as they are properly authenticated in a manner approved by court regardless of whether they are original or not. The wording of this statute leads to the inference that digital videos and photographs are admissible as evidence. However, it is also important to note that the courts have the discretion to refusing to admit digital evidence which raise doubts as to its authenticity. In criminal proceedings, a prosecutor is required to be always ready to offer more evidence regarding the source of the evidence, its processing and storage. In the case of R v Robson and Harris, it was held that a person producing a digital recording as evidence must be ready to describe its provenance and history to prove that it is prima facie authentic. Conclusion There are two main requirements for Admissibility of any images, photographs and videos. The issue of relevance is an ordinary rule for admissibility of evidence. Relevance is important to show that the evidence of the images proves the issue at hand. However, the most important requirement for admissibility of images, photographs and videos is authenticity. Authenticity is the process through which the party relaying on the images convinces the court that the image is original and that it has not been altered. Thus digital photography just as the digital data presents a profound problem of authenticity and as such a challenge to the rules of evidence. There is a problem of distinguishing the original from the copy because digital images may be copied at will. Digital images unlike the analogue images are not stored in some physical property of the recording medium for example the photographic film which can be used to show the physical evidence of the original image. The authenticity of the original image in the case of digital film can only be verified by the testimony of a witness (Munday, 2011, p. 103). The existing United Kingdom legislations for example the United Kingdom Criminal Evidence Act clearly shows that evidence of digital images is admissible in the United Kingdom courts as long as they are authenticated properly. It is also clear that technological authentication is not a requirement in respect of admissibility of digital images although technological authentication of digital images may increase the weight of evidence. There are procedural measures set out in the British Standards Institute which could be used to authenticate the digital images. However, there are no clear rules with evidence of digital data and no matter what principle has been applied to justify admissibility of digital data, it must satisfy the best evidence requirement as it is offered for the its truth forming the basic controlling issue in the case at hand. References Hugh, Charles. (2003). law of Evidence .Cambridge publishers. 79-83 Keenan, Smith (2007). Smith and Keenans English law of evidence. Longman publishers 332-340 Lunney, Oliphan (2005). Admissibility of evidence. United Kingdom. Oxford publishers. 176 R Vs. Robson and Harris 1972 1 WLR 651 United Kingdom Police and Criminal Evidence Act of 1984 Munday, Roderick( 2011) Evidence 6th Edn. United Kingdom. Oxford University. 198-201 Tapper Colin (2010) Cross & Tapper on Evidence 12th edn. United Kingdom. Oxford University Press 342-349 Michael, Scott, 2010. Scott on Computer Law. United States. 223 Read More