LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Computer Evidence Michael I. Shamos, Ph.D., J.D. Institute for Software Research School of Computer Science Carnegie Mellon University

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Purpose of Evidence To prove facts. Evidence makes the existence of fact that is of consequence to the case either more or less probable than it would be without the evidence Matters of law –Determined by the court, reviewable on appeal –Example: “does fraud require the maker of a statement to know that it was false?” –No evidence required Matters of fact –Based on evidence, possibly opinion evidence –Example: “did Mr. X send the threatening ”? –Determined by the “trier of fact,” a judge or a jury –Reviewable under the “clearly erroneous” standard

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Rules of Evidence Statutes that determine which evidence can be introduced, and under what conditions For federal courts, expressed in the Federal Rules of Evidence, enacted by CongressFederal Rules of Evidence The FRE are a model, followed closely by most states, which have enacted the Uniform Rules of Evidence (URE), which closely track the Federal Rules of Evidence Pennsylvania has not enacted the URE

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Uniform Laws Uniform Laws are statutes drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL)Uniform Laws NCCUSL Mary Jo Dively, CMU’s general counsel, was one of the ~300 Commissioners (11 from Pennsylvania) The laws are proposed to the states, which may enact them or not, or enact revised versions Uniform laws are NOT uniform. They often differ from state to state, e.g. the Uniform Commercial Code

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Relevance Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (FRE 401)FRE 401 Only relevant evidence is admissible Why? Irrelevant evidence has no purpose and can be distracting, uneconomical and misleading Evidence that is not “of consequence to the determination” is immaterial and not admissible

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS “Incompetent, Irrelevant and Immaterial” Sometimes in legal TV shows you hear an attorney object to evidence as “incompetent, irrelevant and immaterial.” These mean three different things. “Incompetent” means evidence that does not qualify as proof of an otherwise relevant fact. –Example: someone who did not see a car accident tries to testify to the speed of the cars –Example: An unqualified expert witness “Irrelevant” means “not tending to prove or disprove a material fact. “Immaterial” means not “of consequence to the determination” – it doesn’t matter one way or the other

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Types of Evidence Real/Tangible –A thing involved in the underlying event (e.g. a weapon, document, or other item) Testimonial –Statements by a witness under oath. The trier relies on W’s interpretation of W’s sensory data, memory, etc. Demonstrative –Visible items that illustrate some material proposition about the case (e.g. a map, chart, crime scene photo, summary, computer simulation) SOURCE: JEREMIAH FRYE

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Direct v. Circumstantial Direct –Evidence which, if believed, automatically resolves an issue in the case –Example: A is sued for copyright infringement of music. W testifies he saw A copying the music on B’s computer. (Copying is an element of infringement – it’s an issue in the case) Circumstantial –Evidence which, even if believed, requires reasoning or inference to resolve the issue –Example: B is charged with murdering A. W testifies he saw A copying music on B’s computer. (Copying is not an element of murder. It might inferentially establish motive.)

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Different Standards of Proof In each case one party or another must prove its claim according to an specific “standard of proof” “Likelihood of success” –Used in issuing preliminary injunctions –Substantial probability, but not necessarily > 50% “Preponderance of the evidence” –The usual civil standard –“More likely than not” that each element of the cause of action has been established

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Standards of Proof “Clear and convincing evidence” –“ substantially more likely than not” that the required elements are present –An elevated civil standard often used to prove fraud, overcome a presumption or overturn a government action “Beyond a reasonable doubt” (in the mind of a reasonable person) –The criminal standard –Each element of the crime must be proven beyond a reasonable doubt

Authentication Required “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.” FRE 901FRE 901 Without authentication, evidence is inadmissible unless self-authenticating, e.g. statutes, newspapers. “Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.” FRE 901(b)(8). FRE 901(b)(8).

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS “Best Evidence” Rule “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” FRE 1002FRE 1002 A duplicate of the original is ordinarily permitted, but not oral testimony or other documents referring to the original The “best evidence” rule is very limited. It does not mean that the best evidence must be used to prove each element of the case It also has exceptions, e.g. if the original no longer exists

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Computer “Best Evidence” Rule If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original’” and is admissible. FRE 1001(d)FRE 1001(d) This rule is relied upon heavily in computer litigation since electronic evidence is often transferred to different media before presentation in court The computer best evidence rule was enacted in Pennsylvania SOURCE: JEREMIAH FRYE

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Sutherlin v. State of Indiana 784 N.E.2d 971 (Ind. Ct. App. 2003) 784 N.E.2d 971 (Ind. Ct. App. 2003) Sutherlin robbed Price outside a bank in Indianapolis Brissey witnessed the last 15 seconds of the crime before Sutherlin got away The police showed Price a computer-generated array of 500 mug shots. Price picked Sutherlin with 70-80% certainty The police showed Brissey a computer-generated array of 6 photos, including Sutherlin’s. Brissey identified Sutherlin Indiana is a Uniform Rules of Evidence state

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Sutherlin v. State of Indiana At trial, the state could not produce the Brissey array but offered another computer-generated array showing the same six photographs. It was admitted. Sutherlin was convicted of robbery On appeal, he said the photo array was a “writing or photograph” subject to the best evidence rule. Without the original, a copy should not have been admitted. The appeals court upheld the conviction because the state produced “other output readable by sight” and Sutherlin did not contest its accuracy It would have been different if Brissey had been shown paper photographs! Then originals would be required!

Uniform Photographic Copies of Business and Public Records As Evidence Act (UPA) Enacted in Pennsylvania. Modifies best evidence rule Original business records, e.g. a signed receipt, may be destroyed if a copy is made by a “process which accurately reproduces or forms a durable medium for so reproducing the original,” including digital processes Such a reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court.

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Hearsay A “statement” is –(1) an oral or written assertion or –(2) nonverbal conduct of a person, if it is intended by the person as an assertion. A “declarant” is a person who makes a statement. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Hearsay or Not? A testifies that B told A, “I sold my car last week.” –This is hearsay if offered to prove that B sold his car –It is NOT hearsay if offered to prove that A and B had a conversation A orders some goods from B over the Internet but doesn’t pay for them. B sues A and offers a printout of a database record showing the transaction. –The data is hearsay if offered to prove that A ordered from B –It is not hearsay if offered to prove that B has an online order entry system

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS The Hearsay Rule “Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.” FRE 802.FRE 802 There are MANY exceptions to the Hearsay Rule, applicable when there is reason to believe that the hearsay is trustworthy Example: records kept in the “ordinary course” of business (the “business records” exception) Why? Business owners have an interest in keeping accurate records All evidence can be challenged if admitted.

The Hearsay Flowchart

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Business Records Exception Admissible: “Records of regularly conducted activity.” “A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness … unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” FRE 801FRE 801

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Computer Records Computer records may or may not be hearsay Contents of records with assertions attributed to a person and presented as evidence may be hearsay Computer records generated without human involvement (i.e., internally generated by the computer, like event logs) are not hearsay –The records still require authentication SOURCE: PETER STEPHENSON

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Computer Searches As Evidence Justin Ross Harris left his 2-year-old son Cooper locked in a hot car for hours Cooper died The police seized Harris’s computers Before the death, Harris and his wife searched for information about child deaths in cars and what temperature was needed for death Before the death, Harris discussed with family member insurance policies he had on his son’s life Harris was charged with murder Will the search evidence be admissible at trial? Will the conversation about insurance be admissible?

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Major Ideas Evidence is crucial to proving facts Evidence must be relevant, material and reliable Admissibility of evidence is controlled by a complex set of “rules of evidence” Hearsay is a statement (oral or written) made out of court that is offered as evidence that the fact stated is true Hearsay is not admissible unless permitted by an exception Most business records are hearsay, but admissible under the business records exception

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Q A &