On Authentication Rules Of Electronic Data

Authentication lays basic foundation for the admissibility of electronic data. It is the prerequisite to determine the admissibility of electronic data. The authentication rules of electronic data are important rules of the electronic data admissibility. It is beneficial not only to constraint the discretion of the judge, so as to prevent the high evaluation of evidence, but also to the real equal confrontation between the charge and defense, so as to improve the accuracy of fact finding. However, our criminal procedure law lacks evidence rules of electronic data. This will inevitably lead to disunity of electronic data adoption in the judicial practices, reducing the authority of the law. This paper is themed by the authentication rules of electronic data, and analyzes and draws lessons from the important experience of the authentication rules of electronic data in America. The purpose is to build authentication rules of electronic data in China. The full text includes the introduction and the body, about 34000 words.The introduction explains the research purpose, research methods, research status and research innovations.Part 1 is an overview of two important concepts of “authentication" and "electronic data". Because the word "authentication" comes from the United States, when defining the concept of "authentication", this article first analyzes the etymology of the word "authentication" and the related provisions of U.S. law, and then introduces the views of domestic scholars, so as to put forward the definition of "authentication". In this article, authentication means that the proponent proves the identity of the evidence and the authenticity of the relation between the evidence and the case facts( formal relevancy), in order to make the evidence admissible. Authentication is different from judicial proof in three main features: Authentication is " basic proof" or "preliminary proof", but the judicial proof is "ontic proof"; The proving object of authentication is the identity and formal relevancy of evidence; The proof standard of authentication in U.S. Law is low, which is the “the prima facie standard”. The understanding and expressions of electronic data are not exactly the same in China and the United States. This paper combs and analyzes these points of view, and puts forward the definition of electronic data, namely, electronic material which can prove the advocated fact of case and which is generated, transfered and stored in electronic equipment carriers with the help of modern information technology. The extension of electronic data includes all evidence which meet the definition of electronic data. The characteristics of the electronic data mainly include: relative stability and easy destructibility; Invisibility and the diversity of forms.Part 2 is the introduction to the authentication experience of electronic data in U.S., including the authentication contents, methods, standard and procedure of electronic data. The authentication contents of electronic data include two aspects. That is, electronic data comes from the source where the provider claims and the content of the electronic data hasn't been changed. The authentication methods of electronic data include authentication with extrinsic evidence and self-authentication. Authentication with extrinsic evidence mainly include testimony of a witness with knowledge, distinctive characteristics and the like, process or system, comparison by an expert witness or the trier of fact and chain of custody. Self-authentication mainly include certified copies of public records, official websites, and trade inscriptions and the like. The authentication standard of electronic data is the prima facie standard, not higher than real evidence. The authentication procedure of electronic data is mainly manifested in the discovery proceedings before trial and the "active authentication + passive authentication" programs at trial.Part 3 analyzes current situation of Chinese electronic data authentication, including the introduction of exiting law provisions in China, analysis of features of electronic data authentication and the meanings of constructing electronic data authentication rules. According to our current law, our electronic data authentication implicit in the judge's "examination and judgment " on authority to evidence. The authentication methods are simple, emphasizing the corroborating function of transcripts evidence to each other, excluding witness' s appearing in court, which reflects negative tendencies of "valuing the weight of evidence, but despising its competency" in our country. The construction of electronic data authentication rules can overcome these shortcomings, and has positive meanings in restraining judge's discretion, standardizing examination and judgment on electronic data; promoting the technicalization and modernization in obtain and management of electronic data; reducing misjudge risk, increasing the accuracy of the fact finding; refining the burden of proof of both prosecution and the defense, improving the criminal proof theory.Part 4 is the construction suggestions to our authentication rules of electronic data, including subject, content, methods, procedure and standard in five aspects. The authentication subject of electronic data in China include the parties and the procuratorate. The authentication contents of electronic data also include two aspects. That is, electronic data comes from the source where the provider claims and the content of the electronic data hasn't been changed. On the authentication standards of electronic data, “testimony of a witness with knowledge” is generally manifested as affidavits by witness. “Distinctive characteristics and the like” include general methods and special technical methods. “Process or system” has three inspirations. Normal business records can be presumed authentic under the certification of its unit; Professional forensics software or technology can usually assure the reliability of the source of electronic data; When authenticating complex electronic data such as computer simulation and digital enhanced photos, the reliability of the program or system should be guaranteed. “Comparison by an expert witness or the trier of fact” include comparison by judge and judicial identification. “Chain of custody” is usually showed as custodial documents made by criminal investigative agencies. The documents record the whole state of electronic data since it is been accessed to the court to ensure its identity. Self-authentication mainly include certified copies of public records, official websites, and notarized electronic data. The authentication procedure of electronic data is mainly showed as "presentation of the electronic data-active authentication- objections- passive authentication- certification of judge" at trial. The authentication standard of electronic data is “preponderance of evidence” standard.