The Gazette 1995

DECEMBER 1995

GAZETTE

Admission of Proof of Computer- Generated Evidence

i determining their admissibility in ! evidence at trial. Inscriptions on tomb stones have been held to be documents. The definition of 'document' therefore is somewhat

by Caroline Fennell*

2. Rules of Evidence and the

Recent developments in information technology have posed a major challenge to the rules of evidence. These rules and precepts, it is often alleged, are very much the child of a different era, and can only with grave difficulty, if at all, accommodate the more modern manifestations of information. One might think of the information revolution and its accommodation by the rules of evidence in terms of a legal dinosaur struggling to come to terms with complex changes in the environment in which it operates. Moreover for many lawyers the difficulty is twofold, having themselves to come to terms with what the actual changes themselves comprise. What this paper proposes to do, is to examine the more obvious and likely areas of impact for the trial system and its future operation, of challenges from the world of informatics, to how we conduct legal business. In considering the admissibility of computer generated evidence in court, it is useful to look at the area of law most analogous to computer, or machine generated evidence as it might be termed, which is that of documentary evidence. It is pertinent to recall that the admissibility of documentary evidence has itself made the transition from 'documents' which were chiselled in stone or metal to the written word with which we are now familiar. Many documents to-day may of course themselves be computer generated, though that may not be evident on their face. Photographs, tape recordings, and videos have all been considered to be documents for the purposes of 1. Modern Developments in the Provision and Form of Evidence: An Account of Historical Developments and their Accommodation.

Accommodation of Computer Generated Evidence.

expansive although it has been described for the purposes of

Computer-generated evidence may be treated as either real or hearsay evidence. In R v Wood (1982f it was held that a computer print-out is an item of real evidence and not hearsay if the computer in question is used as a calculator, a tool which does not contribute its own knowledge but merely does calculations which can be performed manually. Nyssens 3 comments that if it is hearsay, the evidence should be subject to the normal rules affecting hearsay evidence. However, some evidence which has been electronic in source, process and result, with no human intervention in the process may be considered real evidence, and presumed reliable. In both cases, however, Nyssens emphasises it is important to establish that the computer was functioning properly, or that the document was unaffected by any malfunction. It is useful to consider the approach of the English courts to this issue in a number of recent decisions. Although it is not always entirely clear whether the evidence is being admitted as a statutory exception to the hearsay rule, or as real evidence, the approach to computer generated evidence generally, and the difficulties posed by its classification and assessment are hallmarks for future implementation of Irish law. In R v Neville 4 the admissibility of a computer print-out-microfiche of a telephone bill was in issue. The mobile telephone was hired from Talkland, a subsidiary company of ICL. A different computer automatically recorded the date, time and duration of each call and sent the details to Talkland whose computer in turn produced an itemised company Racal, carried out the telephone operations. The Racal

admission as being that of an object on which is inscribed a visible writing, the meaning of which is in issue.

Caroline Fennell

In R vDaye\ Darling J. defined a document in the following terms:

. . . Any written thing capable of being evidence is properly described as a document and . . . It is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, clay, and it might be, and often was, on metal. Nowadays it would be reasonable to assume that the words bear a somewhat wider meaning. To- day's equivalent of paper is often a disc, tape or film and conveys information by symbols, diagrams and pictures as well as by words and numbers.

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