Clarifying Legal Ideas from Technology Certifications — a Series
I’m a certification junkie. I’ve also been a lawyer for 28 years. One thing I’ve noticed about certification training: the various certifying groups like to talk about law, but frequently they offer a “unique” understanding — sometimes it’s like this:
For those not interested or able to view the video, it’s an excerpt from the Star Trek episode “The Omega Glory” (S2, E23) (1968), in which the Enterprise crew discovers a planet which has mispronounced and re-interpreted the Pledge of Allegiance and the United States Constitution. William Shatner, as Captain Kirk, sets them straight. I’m no William Shatner, but I will do my best to straighten out some similar confusions around legal concepts as they are given by the certifications.
A couple of points first.
- Code is law, at least for the exam. If you want to pass the exam, study what the relevant texts and trainers tell you about these ideas. Trainers, or edutainers like my favorite, Adam Gordon, know what the exam authors expect as the answer. For the exam, what Adam tells you is the right answer. In fact, I’d suggest not reading this series until you have passed the exam.
- Different jurisdictions have different rules, and the rules change all the time, so you will never have it 100% right.
- Lawyers and judges speak less technology than technologists speak law. So there are a lot of square pegs, round holes, and large mallets involved in fitting this stuff together.
Let’s start with something you thought was easy: The Best Evidence Rule
It means you can only introduce the original document at trial — at least in most cases, right? Right?
Actually, not quite. . .
The best evidence rule says that the “best evidence” of the contents of a “writing” is the “writing” itself — not, testimony about what the original said, for example. Here is Federal Rule of Evidence (abbreviated “FRE”) 1002: “An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.” FRE 1001 defines a writing as “letters, words, numbers, or their equivalent set down in any form.” Let’s look at an easy hypothetical example:
Adam Gordon is the forensics expert in a trial where the defendant, Gary Weingarden is accused of hacking into a government computer.
Prosecutor: Mr. Gordon, did you conclude that Mr. Weingarden accessed the government’s network?
Gordon: Yes.
P: How so?
G: Well I reviewed the access logs and they showed . . .
Defense Counsel: Objection. Mr. Gordon is about to testify about the content of a writing — an access log is made of letters, words, and numbers and is set down in some form. The best evidence of that would be the log itself — not Mr. Gordon’s testimony.
Still pretty simple, right?
Let’s continue —
P: Very well . . . Mr. Gordon, I’m showing you what’s been tagged as Prosecution Exhibit A. Do you recognize it?
G: Yes.
P: Can you tell us what it is?
G: Yes (snickers because he’s literally answered the question).
P: Well, what is it?
G: It’s a forensic image that I created of the hard drive that contained the access logs.
D: Objection: The best evidence rule requires the original, and this is a copy.
P: Actually, FRE 1003 says “A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” And FRE 1001 defines a duplicate as “a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.” Does counsel have a genuine question about the original? Shall we spend the next four hours explaining how forensic imaging and hashing works?
This is already a lot of testimony and we haven’t even heard what’s in those logs yet — or seen the jury’s eyes glaze over as they try to grok the log entries. In most cases, this would be handled in advance of trial, and the prosecutor would probably rely on FRE 1006, which permits the use of summaries as long as they are shared with the other side in advance.
The rules permit other kinds of evidence to prove the content of a document in some cases — Adam was reviewing the logs when an EMP destroyed all copies!
Here’s a trickier example from the film, The Verdict:
At one point in the trial a number on a patient’s admission form becomes a key point. The plaintiff’s lawyer has tracked down the nurse who completed the form — and she has a copy with a different number than the “original”! What to do? Defense counsel objects on multiple grounds, including something that sounds a lot like the best evidence rule:
the copy of the admissions form [is]
incompetent and essentially hearsay
evidence and cite McGee versus State
of Indiana, U.S. 131 point 2 and 216
through 25 of the Uniform Code: 'The
admission of a duplicate document in
preference to an existing original
must presuppose the possibility of
alteration and so must be disallowed.'
And, your Honor, having given the
Plaintiff the leeway we would like
your ruling on this issue now: we
object to the admission of the Xerox
form.http://www.dailyscript.com/scripts/the-verdict-script.html
The judge sustains the objection:
The document is disallowed, the jury
will be advised not to consider the
testimony of Kathy Costello regarding
the Xerox form.
(explains to them)
It's unsubstantiated and we can't
accept a copy in preference to the
original...Is this the right result? Hmmmmm….there are a few things going on here:
- The “original” is being challenged as inauthentic — the nurse’s testimony implies that it has been altered. She kept her copy because she thought this might happen. This creates a weird artifact: Remember FRE 1003 says duplicates are admissible unless there is a question about the authenticity of the original. But here that’s exactly what’s going on! The duplicate is being used to challenge the authenticity of the original. It seems weird to not allow the nurse to tell her story, which is that she kept a copy because she expected the original to be altered. Did the court get it right? Caselaw solves this his conundrum by adding a key word to the rule: “A duplicate may be admitted into evidence unless opposing counsel meets the burden of showing that there is a genuine issue as to the authenticity of the unintroduced original, or as to the trustworthiness of the duplicate, or as to the fairness of substituting the duplicate for the original.” United States v. Chang An-Lo, 851 F.2d 547 (Second Circuit 1988) (quoting an earlier case from the Fifth Circuit) (italics mine). In other words, the duplicate should have been admitted because the original is available for comparison.
- Is this a duplicate? Remember the definition of duplicate requires that it be an accurate reproduction of the original. Here, that’s the issue — the two documents don’t match. Enter FRE 1008, which says that in a jury trial, the jury, not the judge, gets to decide whether:
- A writing ever existed
- another one produced at the trial or hearing is the original; or
- other evidence of content accurately reflects the content
Given that the issue was whether the “original” was the original, or whether other evidence — including the nurse’s testimony and her copy — accurately reflected the content, under the FRE, the judge should have overruled the objection. Of course, as we’ll see in a future installment, the FRE would not have applied in Massachusetts state court, so it’s possible the ruling was correct after all.
Simple, right?
