On Criminal Evidence Rules Of Electronic Data

Prior to the Amendment of Criminal Procedure Law of China in 2012, the research of Electronic Data(“e-data”) is a theoretical study focusing on the legal independency and characters. E-data is transferred into expert opinions or documentary evidence in legal practice. In 2012,E-data was added into the statutory evidence by the Amendment of Criminal Procedure Law and finally won independency and legitimacy of its own legal status,which constituting the basis of later study.Due to the deficiency of connotation and denotation in regulations and judicial interpretations,the academic research and juridical practice are faced with a lot of difficulties in the regime of Evidence Law,such as how to define e-data and to what extent e-data affect the concept and classification of evidence;how to distinguish e-data from documentary evidence,audio-visual materials and physical evidence;what kind of evidence is admissiable and what is the distinguishing feature of hearsay rule,best evidence rule and exclusionary rule of e-data;how to response to cloud data,encrypted data;and to what extent e-data influence on the rule of discretional evidence.All those questions above should be answered by the futher academic research.Besides preface, epilogue and appendix, the dissertation primarily comprises four chapters, including over 150,000 characters.Chapter 1 takes a brief historical retrospect on the study of e-data in the academic fields of criminal procedure and defines e-data through deeply analyse the meaning of“electronic”and “data”in law as: the data relevant to the case generated, stored or transferred by electronic equipment based on modern information technology, including analog data and digital data, which could also be called the data in electronic form in short. E-data is one type of statutory evidence, which works as evidence in the virtual form of data.If evidence is viewed as materials comprising form and content, the information in e-data constitutes content and the data constitutes form.What is the difference between e-data and e-evidence in statutory or academic fields?The dissertation argues that the two legal terms share the same meaning and there is no necessity in theory or in practice to make a distinction between them. Computer-evidence or digital evidence should be included in e-data, no cross relationship exist among them. The descriptive e-data does not constitute scientific evidence, while the analytical e-data belongsto the scientific evidence. The relations between e-data and other related terms show the varity of e-data.Chapter 2 focuses on the features and classifications of e-data which essentially affect the rules of evidence. E-data is a new existing form of evidence.In real world, the content of evidence consists in the person or physical object; in virtual space, the content of evidence exists in data, which makes virtuality the principal feature of e-data. E-data is a paradox for being easy to modify but recoverable and recordable. Fragility is an important character because without professional technology the turefulness can not be valued. E-data could be duplicated without any loss, which means the original content could be stored in duplication totally. The above four features shall essensially bring out the particular rules of evidence.E-data may be classified into different types on different criteria. According to the content for different proving purpose, e-data could be divided into data of factual content and data of authenticity content. Data of factual content is used to prove the facts of case; data of authenticity content is used to authenticate the evidence, which is composed of the data generated, stored, transferred, modified, added or deleted by electronic device and the data of system environment. According to the living status, e-data may be divided into static data and dynamic data, which impact on the protection of human rights in varying degree. E-data could be divided into e-generated data, e-stored data and e-interacted data. E-generated data is produced by the electronic device without human factors in which the rules of physical evidence should apply. E-stored data is data stored by human, in which statement lies, and rules of documentary evidence and testimony should apply. E-interacted data is the result of human and device interaction, thus the rules of physical evidence or testimony may apply.According to whether the evidence is original, e-data could be divided into primary data and derivative data, both of which may identical.E-data may also be classified into encrypted data and non-encrypted data on whether encrypted, closed data and network data depending on the existing environment,which may affect the rules of collection.Chapter 3 explores the impact of e-data to the statutory classification of evidence. In world wide, controdicting to the great number of e-data emerging in legal practice, e-data wasn’t treated as independent evidence in statuory in most countries. Commonly, e-data is treated as documentary evidence with expanding contents. In Chinese Criminal Procedure Law, e-data is recognized as independent statuory evidence, which is very unique in worldwide regulations. The criteria of classification makes chaos in the statutory evidence ofcriminal procedure law and in the legal practice. To resolve the embarrassing situation,audio-visual materials should be cancelled and categorized into e-data with physical evidence and documentary evidence in form of data.E-data has various attributes, the character of data and the character of physical evidence, documentary evidence and testimony, to which different rules of evidnce applying.Chapter 4 discuss the authentication of e-data. E-data relevant to the case should be authenticated first to prove that it is what it purports to be. E-data could be authenticated by producing the materials of the nominal relevancy and justifiability of collections to ensure the decision is given on the basis of true evidence.Authentication rules should be the first important rules for e-data because of the fragility and content of physical property.The burden of produce authentication evidenc lies not on the procecutor but on the evidence-producing party.The stand of proof of authentication is preponderance of evidence not beyond reasonable doubt. E-data could be authenticated not only by producing proof of legitimate sources, chains of custody and circumstantial evidence, but by special means including the application of authentication content, the identification of characteristic and e-forensic software.Furthermore, specific type of e-data could be self-authenticated,such as electronic official document,e-data certifized by notary or by evidence contract.Chapter 5 explores the admissibility rules of e-data. After being authenticated, e-data should be judeged whether it constitutes hearsay or exceptions of hearsay. To those physical e-data, integrity should be met to satisfy the rules of best evidence, which requires originals in court.When applying the hearsay rules to e-data, the element of statement which is used to prove the statement is true should be considered. E-stored data and e-interacted data include the content of testimony, such as expressions, claims, descriptions and implications, to which hearsay rules should apply. E-generated data is produced by electronic device without any statement of human, so that there is no applicable space for hearsay rules. The exceptions of hearsay rules of e-data should be set for the purpose of economical consideration and higher reliability of particular e-document, which should include the public e-record of administrative agencies or e-record of routine business activities with the character of regularity, integrity and not prepared for special prupose.In history, the purpose of best evidence rules was to pruduce the original evidence to court, which is more reliable than duplications. But things changed when e-data emeged.E-data could be duplicated without any loss which is contradicting to the evidence in real world.As a result, the precondition for original evidence does not exist. The boundary between original and duplication is vague. With the development and application of cloud technology, the original even does not exist any more. The worldwide countries have taken flexible measures to re-examine the requirement of original in information society for e-data.The dissertation holds that the requirement for original is not necessary for e-data, the new criteria of integriy should be set up to satisfy the best evidence rule.The integrity of e-data is the certain status when e-data comes into being, including the whole content of e-data, which could be judged by the generation time, certificate of identification, regeneration and validation of data. In U.S., Japan and other similar countries, the corporations of e-data collection and preservation have been founded to provide the surety service of integrity of e-data.If e-data is certified by above or similar corporations, the criteria of integrity shall be considered have been met.Shall e-data obtained illegally be excluded? In criminal procedure law or related judiciary interpretations, e-data with character of testimony wasn’t considered to exclude. On the contrary,e-data was treated as physical evidence or documentary evidence with a limit exclusionary scope.E-data illegally obtained is excluded only in the circumtances of flaw without reasonable explanations, and will not be excluded even when the measures taken violating the regulations and jeopardize the judicial justice and the measures taken belonging to Technical Measures. In brief, in a strictly sense of exclusionary rules, e-data is not excluded in legal practice.The dissertation holds that exclusionary rules shall be applied to e-data exactly as other evidence. E-testinomy, such as recording, video, e-ducument, e-mail or short messenger, if obtained through torture, violence or threat, shall be excluded without any excuse; if obtained through allure or cheat, shall be excluded selectively depending on the the degree of legitimacy, reasonableness and authenticity. E-physical evidence, if obtained through measures violating the constitution or principle human rights, shall be excluded without any excuse; if obtained through measure violating the procdure law or rules, shall be excluded selectively on the basis of fair trial and authenticity of evidence and give the chance to explain.E-physical evidence shall not be excluded if the authenticity is confirmed or shall be excluded.Unless un-authenticated and without reasonable explanations, E-data obtained through measures violating the technical standards shall not be excluded.Chapter 6 explores the influence of e-data on the discretional evaluation of evidence.Due to the scientific and virtual characters, e-data brings to the judge great challenges when it is weighted, which include the difficulty of interpret the information technology and the truble in connecting the fact happening in real world to the evidence existing in virtual world. To resolve the above problems, e-forensic expert should be introduced to assist the judge to interpret the expert opinions and give advisory opinions on the professional issues.Considering that the threat brought by e-data to the protection of human rights and the features of fragility or virtuality, e-data should be supported by auxiliary evidence, which includes two types. One type is the evidence connecting the virtual space to real world, such as the proof of possession or using, the proof that could preclude use by others and could demonstrate the function, using time or stability of electronic device. Another type is the evidence that could prove the reliability of e-forensic methods, such as the proof that could manifest the universality or maturity of forensic technology, the testing reports, the documents of detectability or flaw, the certificate of forensic operator and so on.