Part -7- The Federal Rules of Evidence
The Federal Rules of Evidence (FRE) provide a Court with rules about whether and upon what circumstances evidence may be considered admissible at trial. These rules were written in the era of the non-electronic, paper-and-ink, or physical evidence world, at a time when when paper records were the norm, and when such paper records constituted the most commonly proffered specie of evidence. The FRE is discussed here because it also pertains to evidence that is generated by a computer. This evidence is commonly referred to as "digital evidence." Keep in mind that discovery efforts aimed at obtaining "digital evidence" seeks electronically stored information, or "ESI." Keep in mind that ESI does not necessarily pass muster as admissibile digital evidence. All evidence, including digital evidence, must first (with Information Security related elements indicated in red) be demonstrated to pass numerous admissibility tests (including the legal requirement of "authentication" before a Court will consider admitting this eviednce at trial. Reference is made to the FRE where necessary for outlining the decisional logic used in determining whether ESI should be considered admissible in general and specifically as the FRE relates to Information Security issues. It is important to understand that ESI deemed admissible does not necessarily mean it will be admitted into evidence, as other determining factors (not relevant to this discussion, such as prejudice) are involved in that decision. For purposes of this analysis, therefore, the FRE will be discussed as it relates to the interplay of ESI, with the admissibility decisional logic, and dependencies with Information Technology and Information Security.
The Markel American decision holds that the FRE sets out a
"collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible."
The "series of hurdles" or evidence rules as it relates to determining the admissibility of ESI may generally be set forth in the following paragraphs. Admissibility decision logic is not obvious and therefore a visual representation of the decisional logic an attorney must demonstrate (and upon which a judge must decide) appears below, and uses as an example the admissibility of a digital image of a paper record:
So, let's travel down the digital evidence admissibility logic tree.
- 1. Is the ESI relevant as defined under Rule 401? Does the ESI make a material fact more or less probable than it would otherwise be? If it is deemed relevant, it must pass additional hurdles. If it is not deemed relevant, the ESI is inadmissible.
2. The next hurdle is whether the ESI is deemed authenticated under Rule 901 and 902. The General Provision of Article 9 states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." That is, can the proponent of the evidence show to a reasonable level of satisfaction that the ESI is what it purports to be - at the time the assertion was made? If they can, additional hurdles must be passed. If it is not, the ESI is inadmissible.
3. The next hurdle is whether the ESI is offered for its substantive truth or is it considered hearsay under Rule 801 and 802, and if so does it fall under an exception (Rule 803 and 807) that would allow it to be admissible? Hearsay is generally not admissible as the "declarant" is typically a person (or the writing of a person, or record of an organization) not available for cross examination at trial. Hearsay, however, may be deemed admissible if it falls under specifically enumerated rules generally referred to as "hearsay exceptions."
- 4. The first hearsay exception is the case where the availability of the declarant is immaterial under a Rule 803exception?
- a. First is a business record exception under Rule 803(6) - Records of regularly conducted activity. If not a business record exception, then the ESI may fall under a Rule 807 Residual exception - go to 5. If a business record, it needs to pass the following additional hurdle.
- b. Was the business record made at or near the time the assertion was made? If no, as before the ESI may fall under a Rule 807 Residual exception - go to 5. If yes, it needs to pass the following additional hurdle.
- c. Does the source (computer or person) of information indicate lack of trustworthiness? If yes, as before the ESI may fall under a Rule 807 Residual exception - go to 5. If trustworthy, it needs to pass the following additional hurdle.
- d. Does themethod of preparation indicate lack of trustworthiness?If yes, as before the ESI may fall under a Rule 807 Residual exception - go to 5. If trustworthy, the ESI is admissible.
- 5. The second hearsay exception is the case where the admissibility of the ESI falls under the Rule 807 Residual exception, meaning all other hearsay.
- a. The first hurdle under this exception is in part identical to hurdles defined by the Rule 803 exception. That is, does the hearsay(in the form of ESI) have equivalent circumstantial guarantees of trustworthiness as defined under 803 4b, 4c and 4d? If - the hearsay was made near or at the time of the assertion (yes under 4b), and the source of the information does not indicate a lack of trustworthiness (no under 4c), and the method of preparation also does not indicate a lack of trustworthiness (no under 4d); then the following additional hurdles must be passed. However, if the following is true (if any of - no under 4b, or yes under 4c, oryes under 4d), then the ESI is inadmissible.
- b. The second hurdle under this exception is whether the statement is offered as evidence of a material fact? If no, the ESI is inadmissible. However, if yes the following additional hurdle must be passed.
- c. Does the probative value on the point for which the ESI is offered outweigh the danger of unfair prejudice under Rule 403? The probative value vs. prejudicial impact of any evidence, not only ESI, is an extrinsic analysis taken by a court and is not pertinent to the current discussion. That said, generally, if the answer to that question is "no," the ESI is inadmissible. However, if the answer is "yes" one additional hurdle must be passed, and it must be shown that no other Rule 403 factor is present to the extent that it would require the exclusion of relevant evidence, otherwise admissible (including ESI).
- d. Will the general purposes of the FRE and the interests of justice best be served by admission of statement into evidence? If yes, the ESI is admissible. If no, the ESI is inadmissible
As can be seen, the process is intricate, but is designed to ensure the authenticity of evidence sought to be used by a party at trial
Next: The Expanding Role of the CSO/CISO.