Evidence: Authentication & Reliability

The absence of evidence is not evidence of its absence.
old archaelogical warning.

This module has two parts and spans a two week period. Part B will be posted before April 2, 2005.

PART A

This part is grounded in whimsy, but the intention is to focus you on the need to authenticate evidence. You will be introduced to the science of "diplomatics" which complements your prior work with document retention policies.

Read the script [6 pages] for Scene 5: 'Burn the witch!' from the 1975 film classic Monty Python and the Holy Grail. This scene humorously describes some of the confusions and irrationalities which can arise when scientific logic interacts with the law. The faultiness of the logic employed is obvious, but the scientifically educated judge/lawyer sways the crowd with a logical theory. Further convinced by the appearance and opinions of a scientific expert (King Arthur) they proceed to reach the same conclusion that they were previously inclined to make. The defendant is guilty.

"In the context of records as legal evidence, authenticity is an absolute concept in that it either exists or does not. There is no relative degree of authenticity, while there may be for reliability. The status of being authentic, however, can change at any moment as a result of residual effects of an action or migration that has been performed on the record over time. This is the case for digital data as well." [Sanett and Park]

Diplomatics is the study of "diplomata" or "instrumenta," particularly (though not exclusively) documents of legal force. "Diploma" in classical Latin designates a pair of strips of metal on which was recorded the grant of land to a soldier on completion of his service; from there it is extended to cover all forms of charters, and then all forms of documentary evidence. The modern use of the term "diplomatics" was invented in the seventeenth century. Diplomatics is the study of "whatever pertains to ancient instruments, their age, material, writing and style; whatever pertains to seals, monograms, signatures, or chronological notes; whatever pertains to the study of the antiquity, history, and legal force of such things".

Read [12 pages] "Conceptualizing an Authentic Electronic Record".
A report of the InterPARES task force on authenicating electronic
records.

(optional resource: read about the InterPARES project)

Return to Scene 5: 'Burn the witch!' from the film Monty Python and the Holy Grail. Be imaginative and create written documents that, hypothetically, are also found by the crowd and offered to Lord Bedevere to prove the defendant is a witch. Write a description of those documents [no more than 3 documents]. Think about how you would authenticate them to Lord Bedevere as you create them. Don't stray to far from the setting or time period when creating your documents. There are two facts you must consider: The peasants can't read or write and Lord Bedevere's legal logic is "a bit off". TO DO: Post the description of your documents on the Forum by creating a new topic under "Monty Python". Please post your document descriptions by Saturday, November 5, 2005.

Classmates will review your descriptions and respond by posting procedures, tactics, science, comments, etc. about how to authenticate the documents you describe. You, in return, must post your ideas and comments on how to authenicate the documents posted by others. You may comment on the postings from others until Saturday, November 12, 2005.

PART B

Study the facts in Rottenguff's Henchmen.

Review SUMMARY OF EVIDENCE [14 pages].

Resource: Federal Rules of Evidence

Analyze U.S. v. Siddiqui [7 pages] and apply its holding to Rottenguff's Henchmen and decide if the defense counsel objection should be sustained or overruled. Post your ruling and a brief explanation on the Forum under the topic "Rottenguff Ruling".

Finally, compose a plan to better "authenticate" the computer records and emails in Rottenguff's Henchmen. Your plan should include such items as "Who should be called to authenticate?", "What information is necessary to authenticate?", "What other facts I need?", etc. Give this reflective thought and submit your plan (1-3 pages) by email attachment to jlacarrol@samford.edu no later than Sunday, November 13, 2005. Use the subject line = authenticate