The Best Evidence Rule

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The Best Evidence Rule

With the increasing advances in technology, it has become difficult for the law to keep up with the changes in technology and the various digital media formats, since the best evidence rule was develop in the 18 century when copies were made by hand. The best evidence rule was originally designed to provide a guarantee against inaccuracies and fraud by requiring that the original document be produced. This was predicated on the assumption that, if the original was not produced, there was a significant chance of error or fraud in relying on such a copy.
The article or blog discusses a case (Midkiff v. Commonwealth) where an attorney for the defendant is arguing that the digital image and movie files that were introduced into evidence was in violation of the best evidence rule because the data stored on the defendant’s computer was at least third generation removed from the defendant’s computer. From the defendant attorney’s point of view, when the examiner made a copy of the defendant’s five hard drives, and later made additional copies of those hard drives to provide to the investigator, this process somehow violated the best evidence rule.
I would disagree with the attorney’s argument that a bit for bit copy of the defendant’s computer hard drives is the same as making photo copies from an original document because the bit for bit copy is an exact copy of the defendant’s hard drives each time it is copied, were as, a photocopy of document loses information each time that it is copied. Furthermore, a bit for bit copy of the defendant’s hard drives is essentially a clone of the defendant’s drives, for example, everything is copied identically, such as, the operating system, the hidden directory files,...

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... destroyed. The chain of custody log will be the only proof that no changes had occurred after the State has made copies of the digital evidence. As an additional back-up, I would have the fraud examiner make a video tape of the evidence being displayed on the defendant's computer, just in case the original hard drives became damage or were missed placed.
In conclusion, utilizing digitized evidence in court allows the prosecution to secure the original evidence and to protect it from damage, loss, or theft. Currently, under the Federal Rules of Evidence any printout or readable output of data stored in a computer reflecting the original is deemed to be an ‘original’ and admissible in evidence, however, the fraud examiner will still need to maintain detailed records of the chain of custody, just in case the defendants attorney challenges the best evidence rule.

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