-.. COMPUTER I I JURISPRUDENCE I LEGAL RESPONSES TO THE INFORMATION REVOLUTION 1 MICHAEL D. ROSTOKER ROBERT H. RINES@ Franklin Pierce Law CenterI Academy of Applied Science I I 1 ~ 1 I OCEANA PUBLICATIONS, INC.did not i a good The search warrant used in Ward v. Superior Court is a example of the technical specificity that should appear in computer crime search warrants. The Ward warrant site in-specified the "computer memory bank or other data storage St con-devices, magnetically imprinted with Information Systems further Design (ISD) remote plotting computer programs. ,,77 In .he type addition to the difficulty in determining what to request rmat ion, in the search warrant, there is the uncertainty of the ed under form of the requested items to be seized. This is a prob- granted lem for the drafter as well as the executor of the warrant. investi-A requested computer program may be found in the form States of punch cards, printout sheets, or sti11 in intangible ress an form within the computer.78 Certain state7' and federal i ng the jurisdictions80 allow police officers to use civilian omnit tee assistance in conducting warranted searches. The experts reports are considered special police agents, so their actions te will are protected by the laws of agency. Unti 1 pol ice become more adept at conducting such searches, the practice of comb at having computer experts accompany police on these search 1tion of and seizure forays appeas to be worthwhile. 1 safe-VI. EVIDENTIARY PROBLEMS requi re a suf-The presence of computers has created additional evi dence complexities and definitional problems within the accepted nt man-rules of evidentiary procedure. Such difficulties are ing the inherent whether the prosecution is for a computer crime and the or a more traditional offense. The basis for seeking i nvo1ved admission of computer evidence in litigation is under defense the business records exceptions to the hearsay rule. be c ome Like any other conforming document, computer-generated evidence which meets the specifications of the appropriate statute or common law rule wi11 qualify as a 'businessUntil computer-generated documents are generally accepted, photocopy statutes can be used as a basis for ad- mision of computer evidence. Photocopy statutes allow ad- mission of reproductions made in the regular course of business, thereby allowing the reproductions to be considered equal to the originals. However, authorities consider com- puter outprint microfilm to be the production of originals and not copies of inf~rmation.'~ There is usually the re- quirement that the reproductions be made on a durable medium. There are also federal83 and states4 photocopy statutes. Most of the state statutes are modeled after the Federal Uniform Photographic Copies of Business and Public Records as Evidence Act,85 which has been adopted by 39 states. There are a number of specific business records rules which allow for the admission of computer evidence. These rules are basically similar., and courts of various juris- dictions have frequently cited cases concerned with admis- sibility, from jurisdictions following differing evidentiary rules. These rules are: 1) thk Federal Rules of Evidence, Rule 803~~' es- pecially subsectioned (6) 88, (7) 89, and (8);90 2) the former Federal Business Records Act, 91 which was repealed and replaced in 1975 by the present Federal Rule of Evidence 803(6); 3) the Uniform Business Records as Evidence Act (UBREA). 92 As of 1977 26 states had adopted his rule; 93 4) common law rules in effect in Mississippi and Illinois;94 and 5) specific state statutes governing the admissib- i 1 i ty of computer evidence, as in Massachuset ts,95 New Jersey,g6 North Carol ina, g7 and Arkansas.g8eneral ly for ad- 1low ad- ~urse of )ns idered der com- ~riginals the re-= medium. statutes. : Federal : Records 86 states. rds rules e. These US juris-th admis-rident iary 03~~9 es-nd (8);90 -.91 which -7 e present dence Act opted his ;s ippi and admissib- huset ts,95 98 s. Some of these rules are sufficiently similar in construction, as the Federal Rules of Evidence and the Former Federal Business Records Act, that some courts have readily applied the interpretations of the old statute to cases founded on the newer rule.99 In general all these rules require that the offering of evidence be made in good faith in the regular course of business, prior to the current judicial proceeding, and that it was in the regular course of the business to make such a record at the time of the transaction, or within a reasonable time thereafter. There usually is also a requirement that a witness present information indicating the accuracy and reliability of the computer system that generated the evidence. In some statutes the courts have the dis- cretion to also require that the original data be made 100 available. Under The Best Evidence Rule, when the terms of a writing are the basis of a question in litigation, the original writing must be produced unless it is unavailable for some reason other than the fault of the producer. 101 This rule does not apply to the question of the existence of a writing. The focus of the best evidence rule is just that -securing the best available evidence. The rule is not aimed at excluding evidence. Once a satis-factory explanation is given for the absence of an original writing, secondary evidence is admissible. The scope of the federal best evidence rule is equivalent to the same common law rule. Io2 computer art is specifically included in the definition section of the federal rule. lo3 Generally, admissions a1 lowed under one of the recent business records exceptions are exemptfrom the Federal best evidence rule. lo4 A1 so courts have a1 lowed the admission of a computer printout (deemed' a copy) made specifically for litigation
View Full Document
Unlocking...