Path: utzoo!attcan!uunet!snorkelwacker!apple!well!tenney
From: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Newsgroups: comp.org.eff.news
Subject: Re: Evidence (was Re: Musing on Constitutionality)
Message-ID: <20774@well.sf.ca.us>
Date: 13 Sep 90 00:22:14 GMT
References: <11621@medusa.cs.purdue.edu> <36981@ut-emx> <856.26ed16bf@iccgcc.decnet.ab.com>
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Reply-To: mnemonic@walt.cc.utexas.edu (Mike Godwin)
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In article <856.26ed16bf@iccgcc.decnet.ab.com> browns@iccgcc.decnet.ab.com (Stan Brown, Oak Road Systems) writes:
>
>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?

Well, let me note first of all that in most of the seizures I know
about, it's been the text files that have been of primary interest to
law-enforcement folks.

But let's say they want to prove software piracy. Since the rules
of evidence allow some kinds of duplicates to be considered, in
effect, originals, and other kinds of duplicates to be just as
admissible as originals, the logical thing to do, it seems to me,
would be to have the government witness download binary files from
the system in question, then run it on her own system or on the
government's. That should be testimony sufficient to persuade a
jury that software theft was going on.

The problem is, neither the issues nor the procedures have been
hammered out yet. There may be cases we haven't anticipated, and
the procedures err on the side of inclusiveness precisely because
the law-enforcement establishment is so hazy on what the legal
and social issues are.

>Does this definition include ordinary photocopies as duplicates?

Yes.

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

The latter.

>>     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?

Right. Judges know when the challenge is frivolous.

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

No. This clause applies, I think, to cases in which it is not the document's
contents but the document's authenticity that is in question. (E.g., the
Howard Hughes will that left money to Melvin Dummar.)

>>     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)?

Not offhand. It may be that the drafters had no particular example in mind,
but wanted to leave an out in the event that an obvious unfairness came
along.

>> 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.

You'll find no disagreement here on that score.



--Mike




Mike Godwin, UT Law School  |"If the doors of perception were cleansed
mnemonic@ccwf.cc.utexas.edu | every thing would appear to man as it is,
(512) 346-4190              | infinite."
                            |                 --Blake