Relevancy and Admissibility of Electronic Evidence

In the past decade or two, e-commerce has seen a huge boom. Everything from Harry Potter books to plots of land can be bought online these days. At the same time, the use of closed circuit televisions (“CCTV”) to nab thieves and other miscreants has increased in shopping complexes and other public places, where instead of guards being posted at multiple places, one guard sits at a counter and keeps watch over the entire place through the CCTV recordings. Thus, both in civil as well as criminal matters, technology is assuming an increasingly important role to play.

In the case of electronic contracts, the proof of the transactions actually taking place is available only on emails, often signed with electronic signatures. In criminal proceedings, the prosecution can now use electronic evidence to prove the guilt of the accused.

However, the progression from an age of no technology to its admissibility in the court of law has come gradually over a period of time, causing paradigm shifts in many fundamental principles of the law of evidence. In this paper, the researcher seeks to show the shift that has occurred with respect to electronic evidence within two important rules of evidence – that of hearsay and that of primary evidence. The researcher looks at the earlier position of law in this regard, the reason for subsequent change, the amendments to law, and a few possible effects of such amendment.

Admissible and Relevant Evidence

The law of evidence has long been guided by the rule of “best evidence” which is considered to have two basic paradigms – avoidance of hearsay and production of primary evidence. [1] These rules are believed to weed out infirm evidence and produce only that which cannot be reasonably be doubted. [2] In light of the Indian Evidence Act, 1872, this can be understood as only a person who has himself perceived the fact being proved can depose with respect to it, and not someone who has received the information second hand. [3] Similarly, where a document is to be used to prove a point, the original should be produced in court, and not a copy or photograph or any other reproduction of the same, not even statements regarding the contents by someone who has seen it. [4] For any reproduction of a statement or document is lower on the rung of authenticity than the original, giving opportunities for fraud or fabrication. [5]

Hearsay has been defined as “all the evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the veracity and competence of some other person”. [6] Thus, if a person A chooses to depose in court that person B told him that he had seen person C stabbing person D, person A’s statements with respect to the act of stabbing that occurred will be hearsay, since it is not completely out of his own knowledge, but based partly on what person B told him. However, person B’s evidence will be direct evidence since he saw the act happening with his own eyes. If, on the other hand, person A’s deposition were to be in respect of whether or not person B had seen the act happen, his statements would be direct evidence, since he had himself heard person B say so. Thus, it is the purpose for which a statement is being used that qualifies it as hearsay or not. [7]

Primary evidence is the original document being itself produced for inspection by the court. [8] A document has been defined as any matter which has expressed or described upon any substance by means of letters, marks or figures for the purpose of recording that matter. Thus, a certificate of age, an inscription on a stone plaque, a caricature or photograph, a map, are all documents of various forms. [9] If a copy is made of such a document, it will not be primary evidence since it is not the original. Copies of the original document are considered secondary evidence. [10] Secondary evidence is acceptable in court only under certain conditions, such as when the original is in the possession of the adversary or when the original is destroyed or lost, or when the original is of such a nature that it cannot be easily moved. [11]

So long as evidence is direct and not hearsay in nature, or is primary evidence, the court may accept it, provided that the fact being proved through such evidence proves the existence or non-existence of fact in issue to be probable in the past, presence or future, that is to say, it is a relevant fact. [12] The Indian Evidence Act has set out a number of conditions under which a fact can be considered relevant. [13] In other words, the condition for admissibility of a piece of evidence is that it should prove a relevant fact.

New Forms of Evidence

While there can be no limit to the forms in which evidence exists, they were so far broadly classified into oral and documentary. [14] Documentary evidence was usually such as could be put down on paper – certificates, executed deeds, photographs, maps, caricatures, etc. [15] Slowly, as records began to be made on objects such as cassettes and gramophone discs, those began being entertained as documents too. [16]

Recently, in February 2010, the city of Pune was endangered by a terrorist attack in a much-frequented bakery. [17] The German Bakery blast accused were finally identified by the police on the basis of a CCTV recording. [18] The question, therefore, arises as to whether such a recording, which is neither on paper nor on a camera negative nor on a magnetic tape, in fact, not available in any tangible form at all, can be introduced in court as evidence. The only proof available will be that recorded in the computer system controlling the CCTV unit.

This example brings into focus the very recent phenomenon of the increasing use of computers in everyday life. With the facility of writing letters over the internet being widely available now, more and more contracts are being entered into online. [19] Thus, people can now order products online, and the sellers will ship the consignment across, the payment being made through e-banking. A director and actor may enter into a contract regarding a film through emails. The Chief Executive Officer of a company may confirm the job application of an interviewee over emails. All forms of communication and contract formation which earlier took place face-to-face or through letters can now happen over the internet. Thus, if any of the parties to the contract were to sue each other for breach of contract, the only adducible evidence would be the text of the emails.

On the other side of the spectrum, technology is also being used to plan out criminal activities. The gruesome case of the terror attacks in Mumbai in 2008 brought to light how well terrorists are versed with technology these days, and how they use them to their benefit. The terrorist controllers had purchased Voice Over Internet Protocol (VOIP) connections, making payments through Western Union Money Transfer, so as to stay in touch with the attackers and give them instructions from Pakistan. [20] The details of the internet transactions were provided as evidence by the prosecution in the Trial Court. [21]

Classification of Electronic Evidence

Under the Indian Evidence Act, any substance on which matter has been expressed or described can be considered a document, provided that the purpose of such expression or description is to record the matter. [22] Electronic records have been defined in the Information Technology Act, 2000 as any data, record or data generated, any image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. [23] An electronic record can be safely included under such a definition because matter is recorded on the computer as bits and bytes, which are the digital equivalent of figures or marks. [24]

Computer records were widely considered to be hearsay statements since any information retrieved from a computer would consist of input provided by a human being. [25] Thus, be it a word document containing statements written by one party, or an image of a missing person generated by the computer based on inputs given to it, all such records will be hearsay.

An electronic document would either involve documents stored in a digital form, or a print out of the same. What is recorded digitally is a strictu sensu document, but cannot be perceived by a person not using the computer system into which that information was initially fed. [26] Thus, if music composer A mixed certain tunes on his computer, and another composer, B, wanted to sue him for copyright violation, B would not have access to the digital records on A’s computer. Even though such a document can be imprinted onto a magnetic base, [27] such as a compact disc (CD), it would still require access to A’s computer. A document containing a print out of computer records, though a document lato sensu, can be perceived by anybody. [28] Such print outs of documents would amount to secondary evidence going strictly by the provisions of the Indian Evidence Act.

Electronic documents strictu sensu were admitted as real evidence, that is, material evidence, but such evidence requires certification with respect to the reliability of the machine for admission. [29] In R v. Wood, [30] where the prosecution sought to rely on a comparison of a computer analysis of certain processed metals to that of metals found in the defendant’s possession, the Court held that since the computer had been used as a calculator, the analysis could be admitted as real evidence. [31]

Being both hearsay as well as secondary evidence, there was much hesitation regarding the admissibility of electronic records as evidence.

Shifting Paradigms – Admitting Electronic Records as Evidence

In the United Kingdom, hearsay computer records were made admissible in 1995 through an amendment to their Civil Evidence Act, 1968 because of the lack of objections raised by parties to such evidence over a period of time, indicating its acceptance amongst the general public. [32]

With respect to criminal cases, the position of law following the decision in R v. Wood changed with the decision in Castle v. Cross [33] wherein the prosecution sought to rely on a print out from a computerised breath-testing device. The Court held that the print-out was admissible evidence. [34]

The position of law was clarified in the leading case of R v. Shephard. [35] In this case, records from till rolls linked to a central computer in a shop were produced to prove that items in possession of the accused had not been billed and had thus been stolen by the accused. The issue was whether a document produced by a computer can be produced as evidence. The Court held that so long as it could be shown that the computer was functioning properly and was not misused, a computer record can be admitted as evidence. [36]

In India, the change in attitude came with the amendment to the Indian Evidence Act in 2000. Sections 65A and 65B were introduced into the chapter relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. [37] Section 65B provides that shall be considered documents, thereby making it primary evidence, if the computer which produced the record had been regularly in use, the information fed into the computer was part of the regular use of the computer and the computer had been operating properly. [38] It further provides that all computer output shall be considered as being produced by the computer itself, whether it was produced directly or indirectly, whether with human intervention or without. [39] This provision does away with the concept of computer evidence being hearsay.

Thus, with the amendments introduced into the statute, electronic evidence in India is no longer either secondary or hearsay evidence, but falls within the best evidence rule.

Effects of Considering Electronic Evidence as Primary and Direct

5.1 Blurring the Difference between Primary and Secondary Evidence

By bringing all forms of computer evidence into the fold of primary evidence, the statute has effectually blurred the difference between primary and secondary forms f evidence. While the difference is still expected to apply with respect to other forms of documents, an exception has been created with respect to computers. This, however, is essential, given the complicated nature of computer evidence in terms of not being easily producible in tangible form. Thus, while it may make for a good argument to say that if the word document is the original then a print out of the same should be treated as secondary evidence, it should be considered that producing a word document in court without the aid of print outs or CDs is not just difficult, but quite impossible.

5.2 Making Criminal Prosecution Easier

In light of the recent spate of terrorism in the world, involving terrorists using highly sophisticated technology to carry out attacks, it is of great help to the prosecution to be able to produce electronic evidence as direct and primary evidence in court, as they prove the guilt of he accused much better than having to look for traditional forms of evidence to substitute the electronic records, which may not even exist. As we saw in the Ajmal Kasab case, [40] terrorists these days plan all their activities either face-to-face, or through software. Being able to produce transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused.

Similarly, in the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, [41] the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers. [42]

5.3 Risk of Manipulation

While allowing all forms of computer output to be admissible as primary evidence, the statute has overlooked the risk of manipulation. Tampering with electronic evidence is not very difficult and miscreants may find it easy to change records which are to be submitted in court. However, technology itself has solutions for such problems. Computer forensics has developed enough to find ways of cross checking whether an electronic record has been tampered with, when and in what manner. [43]

5.4 Opening Potential Floodgates

Computers are the most widely used gadget today. A lot of other gadgets involve computer chips in their functioning. Thus, the scope of Section 65A and 65B is indeed very large. Going strictly by the word of the law, any device involving a computer chip should be adducible in court as evidence. However, practical considerations as well as ethics have to be borne in mind before letting the ambit of these Sections flow that far. For instance, the Supreme Court has declared test results of narco-analysis to be inadmissible evidence since they violate Article 20(3) of the Constitution. [44] It is submitted that every new form of computer technology that is sought to be used in the process of production of evidence should be subjected to such tests of Constitutionality and legality before permitting their usage.

Conclusion

It has thus been seen that with the increasing impact of technology in everyday life, the production of electronic evidence has become a necessity in most cases to establish the guilt of the accused or the liability of the defendant. The shift in the judicial mindset has occurred mostly in the past twenty years and most legal systems across the world have amended their laws to accommodate such change.

In India, all electronic records are now considered to be documents, thus making them primary evidence. At the same time, a blanket rule against hearsay has been created in respect of computer output. These two changes in the stance of the law have created paradigm shifts in the admissibility and relevancy of electronic evidence, albeit certain precautions still being necessary. However, technology has itself provided answers to problems raised by it, and computer forensics ensure that manipulations in electronic evidence show up clearly in the record. Human beings now only need to ensure that electronic evidence being admitted is relevant to the fact in issue and is in accordance with the Constitution and other laws of the land.