E-Justice and E-Law Conference
Rome
13 – 14 October 2014 Corte di Cassazione Monday 13 October 2014
Cross border evidence, 16:15 – 17:15
Convenor: Madalina Adam (Ministry of Justice, Romania)
Panellists: Joseph A. Cannataci (University of Groningen, Netherlands) Stephen Mason (Barrister, United Kingdom)
Cristina Ribeiro (International Criminal Court, The Hague) Julian Nichols (International Criminal Court, The Hague) Topics – criminal context
1. Requests for digital evidence
(i) informal mechanisms – advantages/disadvantages;
(ii) MLA – advantages/disadvantages;
(iii) direct
e.g. see the request of the Belgian prosecutor in the Yahoo case; the judgments have been translated into English, links below. The latest judgment is to be published in the 2014 issue of the Digital Evidence and Electronic Signature Law Review.
http://journals.sas.ac.uk/deeslr/article/view/2036 http://journals.sas.ac.uk/deeslr/article/view/2000 http://journals.sas.ac.uk/deeslr/article/view/1973 http://journals.sas.ac.uk/deeslr/article/view/1976 http://journals.sas.ac.uk/deeslr/article/view/1977 http://journals.sas.ac.uk/deeslr/article/view/1978
2. Seizing and obtaining evidence in digital format: whether evidence must be seized in a forensic manner that is acceptable to the host nation.
Topic – civil context
Blocking statutes (for an article that includes a discussion of blocking statutes, see Stephen Mason, Special Briefing: ‘Some international developments in electronic evidence’, Computer and Telecommunications Law Review, 2012, Volume 18, Issue 1, 23 – 32. This article is made available as a download from the conference web site for those participating).
Topic – of general relevance
1. Authentication of digital evidence
Guidance regarding authentication, including the 5-part test for complex data (such as data in banking cases, for example) at 4.21 in Stephen Mason, gen ed.
Electronic Evidence (3rd edn LexisNexis Butterworths, 2012) http://www.stephenmason.eu/?page_id=33
2. The practical aspects of evidence in digital format, such as How it is transported to the court.
How the parties obtain copies.
How the evidence is displayed in court.
Further information
In 2014 the Council of Europe requested Stephen Mason, Barrister and Uwe
Rasmussen, lawyer at the Paris Bar, to prepare A comparative study and analysis on the effect of electronic evidence on the rules of evidence and modes of proof. The Terms of Reference request a comparative study and analysis of existing national legal provisions that have been adopted or adapted on the effect of electronic evidence on the rules of evidence and modes of proof, with a focus on proceedings relating to civil law, administrative law and commercial law (for the purposes of making the analysis slightly easier, ‘civil law’ and ‘commercial law’ are considered to be ‘civil proceedings’).
The study is to identify the problems that the different legal systems in the member states are faced with in this field and in respect of which they are in need of remedies or in respect of which they have put in place solutions. The study will deal, but not exclusively, with issues relating to:
The admissibility of electronic evidence The weight given to electronic evidence The implications for credential rules such as:
Burden of proof Presumptions
Authenticity/reliability
Archiving and preservation of evidence Case and trial management
The role of the judge
Pre-trial search for evidence
The role of independent or court experts
Ideally, the study is to cover the entire 47 member states of the Council of Europe. It is anticipated that the result will be available in 2015.
European Informatics Data Exchange Framework for Court and Evidence
Funding scheme: CSA (Supporting Action), Call ID FP7-SEC-2013-1 Grant agreement number: 608185
Duration: 30 months (March 2014 – August 2016)
Co-ordinator: Consiglio Nazionale delle Ricerche (CNR-ITTIG), Italy Co-ordinating contact: Dr. Maria Angela Biasiotti
EU Funding: € 1,924,589.00
Web site: http://www.evidenceproject.eu
Books
Australia:
Allison Stanfield, Computer Forensics, Electronic Discovery & Electronic Evidence (LexisNexis Butterworths, 2009)
Canada – criminal law:
Daniel M. Scanlan, Digital Evidence in Criminal Law (Thomson Reuters Canada Limited, 2011)
Common law countries and the European Union:
Stephen Mason, gen ed, Electronic Evidence (3rd edn, LexisNexis Butterworths, 2012), covering: Australia, Canada, England & Wales, European Union, Hong Kong, India, Ireland, New Zealand, Scotland, Singapore, South Africa and the United States of America
Europe and selected additional jurisdictions:
Stephen Mason, gen ed, International Electronic Evidence, general editor, (British Institute of International and Comparative Law, 2008), covering:
Argentina, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Thailand and Turkey
USA only (there are even more books relating to discovery):
George L. Paul, Foundations of Digital Evidence (American Bar Association, 2008) – second edition planned for 2014
Paul R. Rice, Electronic Evidence – Law and Practice (2nd edn, American Bar Association, 2009)
USA books that combine the topics of discovery and evidence:
Michael R Arkfeld, Arkfeld on Electronic Discovery and Evidence (3rd edn, Lexis, 2011) Looseleaf
Jay E. Grenig, William C. Gleisner, Troy Larson and John L. Carroll, eDiscovery &
Digital Evidence (2nd edn, Westlaw, 2011) Looseleaf
Michele C.S. Lange and Kristen M. Nimsger, Electronic Evidence and Discovery:
What Every Lawyer Should Know (2nd edn, American Bar Association, 2009) Journals (this list is taken from Electronic Evidence)
Free
Digital Evidence and Electronic Signature Law Review http://journals.sas.ac.uk/deeslr
International Journal of Digital Evidence
http://www.utica.edu/academic/institutes/ecii/ijde/
Forensic Science Communications (considers all aspects of forensics) http://www.fbi.gov/hq/lab/fsc/current/index.htm
Small Scale Digital Device Forensic Journal http://www.ssddfj.org/
Subscription only
The International Journal of Digital Forensics & Incident Response http://www.compseconline.com/digitalinvestigation/
International Journal of Digital Crime and Forensics http://www.igi- global.com/
International Journal of Forensic Computer Science http://www.ijofcs.org/webjournal/index.php/ijofcs
Journal of Digital Forensic Practice http://www.tandf.co.uk/
Journal of Digital Forensics, Security and Law http://www.jdfsl.org Transaction on Information Forensics and Security http://www.ieee.org/
