(A. Glen C.)
The above conference sponsored by the U.S. Embassy and the National Academy of Criminal Justice was held on September 29, 2000. The topic in focus was “Admissibility of electronic evidence in judicial prosecutions.”
The U.S. expert featured in the program was Laura Elaine Gonzales and the Thai interlocuters were Judges Pornpetch Wichithlochai and Jumpol Pinyosinwat. Related material on the conference discussions, in the form of resource booklets are available at libraries at Huamark and Bangna campuses.
Some of the important points of the interactions and discussions included the following :
Electronic evidence is as general as other forms of evidences, governance is common in all cases.
The following are the U.S. Federal Rules of Evidence :
- The Best Evidence rules: where the evidence is in written or recorded form, rules of ethics apply for original forms. There are rules which soften Best Evidence rules: The original itself or counterparts in the forms of recordings, writings, photographs, data stored in computers, computer print-outs.
To validate printout evidence the computer from which the printout was taken needs to be produced in the court.
- Federal Courts Authentication: here, the matter claimed is what it is. Such testimony with knowledge of evidence needs a witness/custodian of evidence. The witness is instrumental in recognizing the document and determining how the evidence can be considered.
- Hearsay: is any statement made out of court and which can be used in the courtroom to authenticate a proof:
The business/records exemption with information from persons with Knowledge of events/evidence. When evidence is not offered towards truth of contents-waiver of Hearsay evidence is possible.
“An admission by a party opponent” does not get a waiver of Hear-say evidence. Such evidence becomes absolute under conditions of circum-stantial evidence-no objection can be made based on hearsay in this case.
e-mail as evidence: the authenti-cation of e-mail is necessary-the content of e-mail-“hearsay evidence” objection is that any e-mail is not evidence.
The U.S. Congress has passed an act to the effect that E -Sign-No paper needed act encourages the use of electronic
means of evidence “instead of paper”
- Contracts- electronic contents permissible-related to content of Business. Any electronic sound/ symbol-the act does not affect wills/ trusts/amendment of will/divorce/ family matters. In other words all these need paper signatures.
Court processes-need paper.
Evidentary circumstances: The traditional foundations:
- witnesses which know authentic signatures
- handwriting experts
- circumstantial evidence from where signature comes form
- Call the employer to verify the signature, for example:
Forensic analysis can best confirm the accused's signature.
How to get voice recordings into evidence?
- Similar to issues with computer logs/other evidence-must be authenticated
- Specific federal rule-the identi-fication ofvoice-can be authenticated by the person who listened to voice recording and at other times the following steps can be used :
The judge makes decisions on the admissibility of the transcript.
- The witness has to be sure/ authentication should be confirmed and may include the following considerations : the proper working order of recorder under three conditions:
- establish the good working order of the machine
- claim ofcustodyofthe tape, confirm it was not tam-pered with
- witness to identify the voice recording
- submit a transcript of the tape recording