Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence

AuthorKen Chasse
DateApril 19, 2019

This is a short summary of the full text of this article, which has the same title, and which was posted on the SSRN, March 25, 2019, pdf.; 62 pages

The fact that lawyers lack the knowledge to challenge the reliability of technical sources of frequently used kinds of evidence, and the tolerating of its impact upon the ability to “do justice,” is due to the under-performance of a number of institutions within the justice system. As a result, law and the rules of practice and procedure applicable to such evidence are moving in one direction, but the reality of what are now the main sources of evidence is moving in the opposite direction. That is the theme of the full text.

The justice system must be seen as one now having several defective parts, which cumulatively create its major problems, including the inability of lawyers to challenge the reliability of electronic sources of evidence. A comprehensive view of the system is necessary to reveal all of the causes of its major problems and also their needed solutions.

Providing lawyers with sufficient knowledge of technology is now a major problem because most of the evidence used for legal proceedings and legal services now comes from complex electronic systems and devices, including the data that is the basis of expert opinion evidence. Examples of such technology dealt with, that produce very commonly used evidence are: (1) the electronic records management systems that produce electronic records—now the most frequently used kind of evidence; (2) mobile phone tracking evidence; (3) breathalyzer/intoxilyzer devices; and, (4) TAR devices (technology assisted review devices) that are used to conduct the “records review stage” of electronic discovery proceedings.[1] Therefore, this article deals in detail with the factors affecting the relationship between such technology and the rules of procedure affecting legal proceedings such as, electronic discovery, disclosure, preliminary inquiries, the admissibility of evidence, and the application of presumptions and inferences.

But the technical literature warns that we trust the software by which they operate far too much. It warns that software errors and vulnerabilities are very prevalent and costly—error rates in the many complex applications of electronic technology. The application of procedural rules for such proceedings should therefore have regard to, for example: (1) the kind of evidence and witnesses the proponent of “the admissibility of evidence” should be required to produce in order to establish, “circumstantial guarantees of trustworthiness”; (2) at which point “the onus of proof” should be transferred to the opponent of admissibility to provide “evidence to the contrary”; (3) how the obtaining, preservation, and production of such “evidence to the contrary” can be achieved by the opposing party; and, (4) how difficult and costly will it be to do so.[2] The answers to these issues should be seen to be interdependent, e.g., the nature of the technology that produces the evidence in question, should not be allowed to provide the proponent of admissibility an advantage that imposes an unfair onus and burden of proof upon the opponent.

For example, the proponent of admissibility being required to call as witnesses the engineers and technicians responsible for the operation of the technology that produces the evidence in question, makes available to the opponent of admissibility, for cross-examination, the key witnesses who can be knowledgeably questioned about the existence of any such “evidence...

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