ADMISSIBILITY OF ELECTRONIC EVIDENCE IN UGANDA, IS IT ‘AUTHENTIC’?

 Introduction.

Presently, most people around the globe use internet to send and receive instant messages, play on line games, download music and movies, share experiences and stories. Thus the internet undoubtedly provides a new vehicle for social connections and networking, linking people together without heed to geographic limitations. Yet despite all these benefits the internet has become a vehicle for criminals to meet their victims.

With increased reliance on technology in everyday life including transacting business, recreation and culture, individuals leave traces of criminal activity, concluded contracts and breaches and other correspondences, on their computer and on line. This raises questions as to the admissibility of such evidence given our present rules of evidence in Uganda under common law and statute.

During discovery, you assemble e-mails with all sorts of seemingly irrebuttable facts, computer records from which you can easily compute damages, and copies of Web pages from various sites that support your theory of the case. Your work is done; you are ready for trial. But are you? Will you be able to get all of that great electronic material admitted at trial? After all, in many cases, even if evidence is accumulated, it may be inconsequential if it becomes inadmissible at the trial.

This article will therefore discuss whether electronic evidence (particularly e-mails) from internet-based sources, social networks can be admitted under the Uganda’s evidence rules. There is little or no local material and case law on this subject. The author will traverse through the well known rules admitting evidence and discuss whether the same can be used in admissibility of electronic evidence. Specific emphasis to relevance, authenticity, and the best evidence rule.

Admissibility and relevance.

In order to successfully admit any piece of evidence, electronic or otherwise, a party must overcome three obstacles (1) authentication, (2) hearsay, and (3) the best evidence rule. The starting point was highlighted by Tsekooko, Ag.J ( as he then was) in Uganda vs David Kamugisha & Anor [1988-90] HCB 77 that the question of admissibility of evidence be it oral or documentary basically depends on whether it was relevant to the issue before court. Otherwise the court record would be filled with all types of evidence which was not sufficiently relevant and they might tend to prolong the trial unnecessarily because of immaterial matter. Among the exceptions was that affecting the credibility of a witness or impeaching his credit. Sec. 4 of the Evidence Act¹states that only relevant evidence in respect of the existence or non existence of a fact in issue may only be given in any suit or proceedings. Thus all relevant evidence² is admissible except as otherwise provided under the Constitution³ and Acts of Parliament⁴.

Would these rules apply directly to electronic evidence? In the neighborhood, Tanzania’s High Court has already pronounced itself on the admissibility of electronic evidence which has been followed by an amendment to their Evidence Act⁵. In the case of Trust Bank Ltd vs Le-Marsh Enterprises Ltd, Joseph Mbui Magari, Lawrence Macharia Commercial Court Case No.4/2000 (High court of Tanzania) court was called upon to rule upon as to whether electronic evidence was admissible as best evidence. Court ruled that the electronic evidence is admissible in Tanzania courts. This was a departure from the strict rule of best evidence rule. The judge stated that the court should not be ignorant of modern business methods and shut its eyes to mysteries of the computer. Subsequent to that decision, the parliament of Tanzania responded by enacting the Electronic Evidence Amendment Act, No. 15 of 2007 which made provision for the admissibility of electronic evidence in courts of law in Tanzania⁶. Ugandan Courts have not come out expressly on the admissibility of electronic evidence. This calls for searching within the existing legal regime to ascertain whether it is admissible⁷.

Authenticity.

Authenticity in evidence is what the party claims it to be, otherwise it is irrelevant. The test of authenticity is that the proponent must present “evidence sufficient to support a finding that the matter in question is what its proponent’s claims. A document may be authenticated based on

“appearance, contents, substance, internal patterns, or distinctive characteristics taken in conjunction with circumstances can provide sufficient indicia of reliability to permit a finding that it is authentic”⁸.

Consequently, the standard of authenticating electronic evidence is substantially the same as authenticating other documents⁹. It will usually take the form of testimony by an individual with direct knowledge that the produced evidence is what it purports to be

Authentication or identification should be a condition precedent to admissibility, and is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.

E-mail print outs should be admitted just like ordinary paper evidence with the foundation that the print out is what the person saw on the web after typing in a particular address. Other jurisdictions have so far gone ahead to draft rules of court and statutory rules in respect of admitting electronic evidence. In the American case of US vs Briscoe, 896 f.2d 1476 at page 1494-95 (7^th Cir.1990), the federal court stated that a proper foundation for computer records is generally established if the party presenting the computer records,

“provides sufficient facts to warrant a finding that records are trustworthy and the opposing party is afforded an opportunity to inquire into the accuracy thereof and how the records were maintained and produced”.

Although authentication is a relatively low standard, in order to prevail, the proponent must be able to successfully show that the content of these social postings, e-mails are attributable to, connected to, and even authored by the defendant through the existence of direct or circumstantial evidence. The degree of authentication does not vary simply because a record happens to be (or has been at one point) in electronic form¹⁰.

Of course while the standard for admissibility of electronic records may not be extremely high, care should be taken to ensure that the records will withstand a challenge as to credibility. The authenticity of an electronic document would be stronger if,(a) Nobody but the author would be likely to put this type of information there, (b) The length of time the evidence was on the website; (c) The fact, if applicable that it is still on and can be viewed by the judge.

The party seeking the admission of an e-mail is not required to prove beyond doubt the accuracy of the record, rather, enough evidence required to satisfy the inquiry and shift the burden to the opponents to prove that the computer system is unreliable.

That notwithstanding, there various Challenges to authenticity of electronic documents which include; (a) Where the records are altered, manipulated or damaged after they were created, courts are skeptical of unsupported claims or alterations; (b) Reliability of the computer program that generated the records; (c) Identity of the author of the records- corroborate with circumstantial evidence; (d) There is a possibility of fabricating emails to create evidence of misconduct.

The authenticity of the email as evidence may be challenged by questioning if the evidence was altered or manipulated after they were created and this raises issues relating to the chain of custody of the evidence. However, it is my opinion that at this stage what the party seeking the admission of the document has to do is to establish a prima facie case for admissibility. This could be done by laying the foundation for admissibility. For instance by showing that the internet service providers may be able to retrieve information that its customers posted or emails that its customers sent. Also showing the reliability of the third party service provider in handling the records of the digital evidence. Mere authentication may not be enough. Compliance with the requirements of identification by no means assures admission of an item into evidence as other bars like hearsay, relevance may remain.

Laying foundation for the admissibility of electronic evidence;

For admissibility, there must be both proper authentication and a basis for admissibility as a non hearsay or under an exception to hearsay rule. If the author of the record (i) admits that he/she authored the document, (ii) admits that the document is true, (ii) is available for cross examination, and there is no hearsay, then the document is admissible. The proponent, however, must establish a foundation that the record was created and stored in such a way as to ensure reliability¹¹. Indicia of reliability can include; (a) Validation of computer systems to ensure accuracy, reliability, consistent intended performance and the ability to conclusively discern invalid or altered documents; (b) Ability to generate accurate copies of records in both human readable and electronic form; (c) Protection of records to enable their accurate and ready retrieval throughout the records retention period; (d) Limiting systems access to authorized individuals, and use of authority checks to ensure that only individuals who have been authorized can use the system, electronically sign the record, access the operation or device, alter a record or perform the operation at hand.

The requirements of admissibility of e-mails in evidence were classically expounded on by United States of America Magistrate Judge, Judge Paul W. Grimm in the case of Lorraine vs Markel America Insurance. Co. 2007 WL 1300739 (D.Md. May 4, 2007). In that case involving contract interpretation issues, Magistrate Judge Grimm refused to allow either party to offer emails in evidence in support of their summary judgment motions. He found that they failed to meet any of the standards for admission under the Federal rules of evidence. The emails were not authenticated but simply attached to their pleadings as exhibits, as has been the common practice. Even though neither party directly challenged the admissibility of the other’s emails evidence, the court was not in position to consider emails, because no basis had been provided by the parties for admissibility or authentication. In Judge Grimm’s words,

“unauthenticated emails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium. Given the pervasiveness today of electronically prepared and stored records as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence” [ emphasis mine]

He noted that courts have recognized that authentication of electronically stored information may require greater scrutiny than for the authentication of ‘hard copy’ documents. Judge Grimm further noted that there are many ways in which email evidence may be authenticated with the most frequent ways being, person with personal knowledge, expert testimony, distinctive characteristics including circumstantial evidence.He further laid down five evidence rules which must be considered, to wit;

1. 
   
   Is the evidence relevant (does it have any tendency to make some fact that is of consequence to the litigation more or less probable that it otherwise would be).
2. 
   
   If relevant, is it authentic (can the proponent show that the evidence is what it purports to be?)
3. 
   
   If the piece of evidence that is being offered as evidence an original or duplicate under the best evidence rule, or if not is there admissible secondary evidence to prove the content and,
4. 
   
   Is the probative value of the electronic evidence substantially outweighed by the danger of unfair prejudice such that it should be excluded despite its relevance?

He noted that the above rules may not apply to every exhibit offered into evidence. The opinion of US Magistrate Judge Grimm is not only a review of the requirement for admitting electronic evidence under the Federal rules of Evidence, but a practical discussion of some of the technology and documents management issues raised by those requirements such as the indicia of authenticity and data collection techniques. Once a communication ( letters, emails, web pages) is authenticated as having been created by the opposing party, it should be admissible for any purpose as non- hearsay¹². This should be primarily in the context of admitting e-mails in evidence. This would make a logical sense to extend it to publicly available network websites that are in essence held out as public diary or accessible to those surfing on line.

Evidentiary weight of Electronic Documents.

Even if a record is authenticated and admissible, the court still must decide how much weight it should be accorded. The general rule with respect to authenticity of electronic records is that inaccuracies or suspicions of alterations of the records are an issue for the trial judge of fact to consider when weighing the evidence, not in determining its admissibility. Given that most electronic documents will be admissible for the same reasons as their paper counterparts, it appears that the majority of disputes will not be about admissibility but rather about what weight to accord to such records. So, does the fact that an e-mail record may be altered more easily than a written engender any special concern? Who will have the burden of proof as to reliability? In the American jurisdiction, in the case of US vs Young Bros, Inc 728 F, 2d 682, 693-94 (5^th Cir, 1984) court rejected an argument by the defendant that computer records are inherently less reliable because of potential software and data entry problems¹³. Thus importantly, it is clear that electronic evidence is not deemed to be inherently less reliable or trustworthy than paper records. Thus in the absence of the specific evidence of tampering, allegations that computer records have been altered should go to their weight, not their admissibility.

The exclusionary rule/best evidence rule.

An oldest dogma of the law of evidence is that a party seeking to rely upon the contents of a document must adduce primary evidence of it¹⁴. Sections 60¹⁵ and 61¹⁶ and 63¹⁷ of the Uganda’s Evidence Act¹⁸ emphasis this best evidence rule. The perfect and the most common item is the original of the document itself¹⁹. In the case of Macdonell vs Evans²⁰Maule.J states that what the best evidence is must depend upon circumstances. Thus when the subject of inquiry is the content of a document, no evidence is admissible other than the document itself except in the cases enumerated under section 64(1) of the Evidence Act²¹.The crucial question at this stage is whether printed out emails and other computer records qualify as original to satisfy the test of the best evidence rule. It is my submission that if data are stored in a computer or similar device, any print out or other output readable by sight, shown to reflect the data accurately should be regarded as primary evidence with in the meaning of section 61 of the Evidence Act.

Conclusion;

Creating and securely archiving and retrieving is a trial of the entire electronically stored information management process, from the steps of signing the record all the way through sealing electronically the document are examples of an effective electronic process which may enhance the overall persuasiveness of the hard copy of the electronic contracts and other electronic communications and emails. Emails and similar forms of electronic communications may not be properly authenticated with in the existing framework of rules of evidence in Uganda. Electronic evidence brings a unique baggage to the admissibility equation that we need to think through very carefully. Essentially the appropriate body will have to create a whole body of law to deal with electronic evidence.

© January 2008

1 Evidence Act Cap 6 Laws of Uganda Revised edition, 2000

2 Generally, all relevant Evidence is admissible. The most notorious bar to admissibility, of course is hearsay. According to Osborn’s Concise Law dictionary, 9^th Edition, 2001,Hearsay is defined as a statement [either oral or written] 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.

3 In respect to right to privacy and privileged documents.

4 The Evidence Act, The evidence (Bankers Books) Act etc

5 Tanzania evidence Act, 1967 section 40

6 Electronic Evidence Amendment Act, 2007 can be found in Miscellenous Amendement Act, No. 15 of 2007 available at http://www.parliament.go.tz

7 There could be situation where courts in Uganda have admitted such evidence without contest from the opposite party or court cautioning itself on its authenticity.

8 The admissibility of electronic Evidence in Court” Cybex initiative. A comprehensive study by Cybex; The Digital forensic company, supported by European Union; http://www.cybex.es/AG2005/news.htm

9 “The admissibility of electronic Evidence in Court” Cybex initiative. A comprehensive study by Cybex; The Digital forensic company, supported by European Union; http://www.cybex.es/AG2005/news.htm

10 US vs Vela, 673 F.2d 86,90 (5^th Cir.1982); US vs De Georgia, 420 F2d 889,893 (11^th Cir.1969)

11 http://www.indianalawblog.com /archives/2007/06/discovery_of_el.html Monday, June 18^th, 2007

12 Jon Neiditz; “From E- Discovery to E- Admissibility? Lorraine v Markel and What may follow”, Lord Bissel & Brook LLP. Information Management Practice. Available at http://www.lordbissel/.com accessed on 21^st november, 2007, 13:25hours.

13 Similarly in the case of US vs Glasser, 773 F,2d 1553 (11^th Cir.1985), computer print outs of transactions relating to mortgage bank accounts were admitted into evidence under the business records exceptions. However, there is no similar legislation in Uganda regulating electronic evidence to incorporate the business records exceptions. Perhaps the new bill in the offing by the Law Reform Commission should consider such provisions.

14 P.B Carter (1970); Cases and Statutes on Evidence, 11^th edition, sweet & Maxwell, London, page 629

15 Sec.60 states that “The contents of documents may be proved either by primary or secondary evidence”.

16 That primary evidence means the document itself produced for inspection of the court.

17 Documents must be proved by primary evidence except in the cases mentioned under sec.64

18 The Evidence Act, Cap 6 Laws of Uganda, Revised edition, 2000

19 See; Macdonell vs Evans, (1852) common pleas 21 L.J C.P 141 Maule.J stated that, “it is a general rule… a party tendering a private document should give the best evidence. Generally the best evidence is the original document, which is primary evidence of its contents”.

20 ibid

21 See also; Prince J.D.C Mpuga Rukidi vs Prince J.D.c Mpuga Rukidi, Supreme Court Civil. App. No. 18/1994 in the judgments of Odoki J.S.C and Oder J.S.C in respect of admissibility of photocopies of documents under section 64 of the Evidence Act.