Wednesday, August 27, 2008

Common Sense

In a recent ruling, the judge called for common sense in dealing with objections to the use of CCTV as evidence in trial.

Raising some key criteria, he indicated among other points the following:

1. Not a single word in the recording had been questioned.

2. That defence did not have another version of what happened, and did not deny that things did not happen in the way portrayed in the recording.

3. That while experts had claimed that digital recording could be manipulated or altered in some way, the defence had failed to show that this had been done.

4. The person collecting the evidence had been accepted as skilled enough to handle and store data.

5. The recordings were audible and clear.

6. The manner in which the information had been generated, stored and communicated has gone unscathed by the defence.

An important point that emerges from this discussion is that just because digital evidence can be altered, it does not mean that it is therefore excluded. The judge above noted “Is it enough to say that it can be altered in the absence of evidence that this actually occurred? (ibid.). There are a number of other criteria by which it may be tested for its authenticity and originality. Even an imperfect CCTV video may be relevant for a case, given the right support. However, some general principles emerge for the case.

* Do not rely only on the video footage unless it has strong technological integrity and has been handled properly.

* Wherever possible, use other sources of evidence to confirm what the video footage is saying.

* Ensure that the person who collected the data can authenticate it and that they are competent in gathering it.

* Minimise any transfer of data and avoid editing data until such time as the status of the original has been confirmed.

* State what the footage is showing and how that is relevant for the case in question – this will determine evidential weight.

* Avoid any potential for sensationalising data or use for publicity purposes as this detracts from the key purpose of the video and suggests alternative interests.

In the judgment discussed above, the judge noted that previous judgments showed that the courts were embracing the digital age with caution ...

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