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From: browns@iccgcc.decnet.ab.com (Stan Brown, Oak Road Systems)
Newsgroups: comp.org.eff.talk
Subject: Re: Evidence (was Re: Musing on Constitutionality)
Message-ID: <856.26ed16bf@iccgcc.decnet.ab.com>
Date: 11 Sep 90 21:54:22 GMT
References: <11621@medusa.cs.purdue.edu> <36981@ut-emx>
Followup-To: comp.org.eff.talk
Lines: 91

In article <36981@ut-emx>, mnemonic@walt.cc.utexas.edu (Mike Godwin) writes:

[lots of interesting stuff, with (thank goodness) citations so we know
he's not just making it up.  Editorial comment: if persons who disagree
with others would give their references instead of just saying, "Believe
me because I'VE DONE RESEARCH," the signal-to-noise ratio of this and
other newsgroups would rise.  Of course the volume of postings would
probably shrink!  :-) ]

But to get to the point, I'd like to ask some questions.  I'm posting
rather than emailing because I think there may be general interest.

>              Consider the following excerpts from Article X of the
> Federal Rules of Evidence:
>
>     Rule 1001. Definitions
>     For purposes of this article the following definitions are applicable:
>     [text omitted]
>
>     (3) Original. An "original" of a writing or recording is the writing or
>     recording itself or any counterpart intended to have the same effect
>     by a person executing or issuing it. An "original" of a photograph
>     includes the negative or any print therefrom. If data are stored in
>     a computer or similar device, any printout or output readable by sight,
>     shown to reflect the data accurately, is an "original."

Mike, how can the contents of a hard disk be printed in a way that meets
this definition?  I'm not thinking of ASCII files, which obviously
present no problem.  I suppose dBASE files and spreadsheet commands can
be printed using their internal print commands.  But what about .EXE
files and similar binary stuff?

>     (4) Duplicate. A "duplicate" is a counterpart produced by the same
>     impression as the original, or from the same matrix, or by means of
>     photography, including enlargements and miniatures, or by mechanical
>     or electronic re-recording, or by chemical reproduction, or by other
>     equivalent techniques which accurately reproduce the original.

Does this definition include ordinary photocopies as duplicates?

I understand handwritten copies are not "duplicates" as defined above,
but are they completely invalid or valid only when nothing better is
available?

>     Rule 1002. Requirement of Original
>     [This is the common-law Best Evidence Rule as it has been codified
>     in the Federal Rules of Evidence; it is therefore the rule to which
>     Spafford refers.]
>     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.
>
>     Rule 1003. Admissibility of Duplicates.
>     [This is the rule Spafford hasn't heard of.]
>     A duplicate is admissible to the same extent as an original unless
>     (1) a genuine question is raised

Presumably as opposed to a frivolous question, just to delay things?

>                                      as to the authenticity of the original
                                                                     ^^^^^^^^
Shouldn't that be duplicate?

>     or (2) in the circumstances it would be unfair to admit the duplicate
>     in lieu of the original.

I'm curious--couldd you give an example of (2)?

[>> = earlier posting by Gene Spafford]
>>(I'm told that the normal course of prosecution is such that it may
>>take upwards of 2 years for an indictment to be made.  Thus, the
>>equipment needs to be held all that time.  This is a hardship for the
>>defendant, but not at all unusual -- cases involving the seizure of
>>cars, boats, printing presses (in counterfeiting cases), business
>>records and so on often result in in the material being held for
>>similar lengths of time.  The belief is that it is more important to
>>preserve the evidence to allow you to challenge it in court than it is
>>to return it to you quickly.)
>
> It is also believed that any pressure brought to bear on the defendant
> provides additional motivation for plea bargains.

Seems like one of the many unfair parts of RICO, that it
institutionalizes seizure onm indictment.  And the seizure itself may
work irretrievable harm, even if the defendant is found innocent and the
property ultimately restored.

Stan Brown, Oak Road Systems, Cleveland, Ohio, U.S.A.         (216) 371-0043
The opinions expressed are mine. Mine alone!  Nobody else is responsible for
them or even endorses them--except my cat Dexter, and he signed the power of
attorney only under my threat to cut off his Cat Chow!