Rethinking Admissibility of Electronic Evidence

Abstract

The development of information technology has generated several legal debates. Most of these debates are concerned with substantive rights and obligations. However, the enforcement of these substantive rights and obligations, to a large extent, depends on the effectiveness of procedural laws. This article focuses on one of the most important procedural issues—admissibility of electronic evidence. The factual bedrock for the enforcement of substantive rights and obligations is dependent on the framework we adopt for admissibility of electronic evidence. This article identifies four most important issues surrounding the admissibility of electronic evidence: (i) the debate between special framework and general framework; (ii) the substantive content of the conditions of admissibility; (iii) certification requirements; and (iv) the dichotomy of primary and secondary evidence. For discussing these issues, the experience of the Indian framework lies in the heart of this article. Where relevant, the article also draws lessons from other jurisdictions including the USA, the UK, Canada, South Africa and Australia to discuss the way these debates have been addressed in different jurisdictions.

Keywords: Electronic Evidence, Evidence, Criminal Law