The Gazette 1995

GAZETTE

DECEMBER 1995

Admission of Proof of Computer-

Generated Evidence

by Caroline Fennell*

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.

1. Modern Developments in the

Provision and Form of Evidence:

An Account of Historical

Developments and their

Accommodation.

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

determining their admissibility in

! evidence at trial. Inscriptions on tomb

stones have been held to be

documents. The definition of

'document' therefore is somewhat

expansive although it has been

described for the purposes of

admission as being that of an object on

which is inscribed a visible writing,

the meaning of which is in issue.

Caroline Fennell

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.

2. Rules of Evidence and the

Accommodation of Computer

Generated Evidence.

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

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

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.

Neville

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

company Racal, carried out the

telephone operations. The Racal

computer automatically recorded the

date, time and duration of each call and

sent the details to Talkland whose

computer in turn produced an itemised

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