Best Evidence Rules For Electronic Evidence

Electronic evidence has the characteristics of distortion,vulnerability,and easy to be modified,because of technical limitations,it is difficult for the current judicial practice of electronic evidence forensics to avoid changes to the obtained electronic evidence.In the current judicial practice,because the original data does not have readability,so in most cases electronic evidence are submitted to courts by the way of printouts,copies,screenshots,screen photos,transcriptions,transcripts,notarized certificates,web snapshots and so on,which has formed a huge impact on the application of the traditional best evidence rules.Through practical investigation and doctrinal analysis,in the era of electronic evidence,it is urgent to analyze the best evidence rule from its basic connotation of "the best evidence is the evidence that the nature of the thing is capable of".At the same time,on the basis of clarifying the basic connotation,it is clear that the electronic evidence in the original storage media is the "most original evidence" which is required by the traditional best evidence rules,that is "the best evidence".But in the context of electronic evidence,because of its forensic characteristics and the limitations of availability,and combined with the essence of the best evidence down to "the substance of the evidence and the original best information",in specific cases we should recognize the evidence,which according to the case is immediately available,is the best electronic evidence,no matter what form it is presented.As long as the evidence information contained in the carrier can be consistent with the original electronic evidence,even if it is other derivative copies,it also has the best evidentiary properties.Thus,the central proposition of this paper is that in order to effectively implement the principles of evidence adjudication,based on the special nature of electronic evidence,it is necessary to reinterpret the best evidence rules in the context of electronic evidence,so as to regulate the admissibility of electronic evidence in judicial practice.Based on this,according to the logical order of the proposed solution,the following five topics need to be discussed: firstly,electronic evidence has formed what kind of challenges to the traditional best evidence rules;secondly,whether the existing research is accurate for the interpretation of the best evidence rules,and if not,what should be the correct interpretation of its connotation;thirdly,what impact has the forensics of electronic evidence had on the originality of electronic evidence;fourthly,based on the impact of electronic evidence forensics on the originality of it,what should be the correct connotation of the best evidence rule in the context of electronic data;lastly,how the best evidence judgment of electronic evidence is landed in practice.Based on above summary,this paper revolves around the central proposition of "best evidence rules for electronic evidence" and is divided into five parts.The introductory section focuses on a general review of the research background,value,and issues to be addressed,and presents the overall idea of examining the best evidence rules for electronic evidence based on sorting out the existing research.Chapter 1 is about the impact of electronic evidence forensics on the originality of electronic evidence.This chapter is divided into two parts,the first section is the analysis for electronic evidence forensic means,including the analysis of the technical nature of electronic evidence forensics and forensic technology on the dual impact of electronic evidence.The second section is about the existing means’ impact on the originality of electronic evidence,including the existing means of forensics on the originality of electronic evidence and the impact of derivative processing on the originality of electronic evidence.Chapter 2 is about the internal interpretation of the best evidence rule.This chapter is divided into two sections: the first section specifies the intrinsic boundary of the best evidence,i.e.,the integrity of evidentiary information;the second section specifies the extrinsic boundary of the best evidence,i.e.,accessibility.Chapter 3,analyzes the challenges of electronic evidence has formed to the traditional best evidence rules.This chapter is divided into two sections: the first section analyzes the challenges of electronic evidence to the intrinsic boundaries of the best evidence rules from both the unavailability of the original and the impact of derivative electronic data on the connotation of evidence and consistency of information;the second section explores the challenges of electronic data to the extrinsic boundaries of the best evidence rules from the degree of impact of both existing accessible technologies and existing perceptible carriers on the optimality of electronic data,and conducts a corresponding doctrinal analysis.Chapter 4 is about the construction of the best evidence review and judgment rules for electronic evidence.This chapter is divided into three sections: the first section analyzes the principle of perfection of electronic evidence review and judgment rules,the second section reviews the current status of legal regulation of best evidence of electronic evidence in China,and the third section puts forward suggestions for improving the best evidence rules for electronic evidence in China.Comprehensive aforementioned,the purpose of this paper is to interpret the basic connotation of the best evidence rule from " the best evidence is the evidence that the nature of the thing is capable of ",and then define the new connotation of the application of the best evidence rule in the context of electronic data on this basis.At the same time,in order to facilitate the application of judicial practice,it is proposed to interpret the principles by way of Gilbert’s "gradient" judgment system of evidence,to build a procedural judgment system of the best evidence rules for electronic evidence,so as to regulate the judicial practice for the review and judgment of electronic evidence.