Contents
Machine generated contents note: ch. 1 The sources of digital evidence
Introduction
The computer
The components of a computer system
Data storage facilities
Data formats
Starting a computer
Types of evidence available on a computer
Files and logs
Documents and files created or modified by the purported user
System and program files
Temporary files and cache files
The legal consequences of the temporary files and cache files
Deleted files
Handheld devices
Networks
Types of network
Types of application that run on a network
Concluding remarks
ch. 2 The characteristics of electronic evidence in digital format
The dependency on machinery and software
The mediation of technology
Speed of change
Volume and replication
Metadata
Types of metadata
Social context and metadata
Storage media
Illicitly obtaining confidential data
Anti-forensics and interpretation of evidence
Contents note continued: Data destruction
Falsifying data
Hiding data
Attacks against computer forensics
Trail obfuscation
Reviewing the intellectual framework
ch. 3 Proof: the investigation, collection and examination of digital evidence
Guidelines for handling digital evidence
Subject areas of expertise
Handling digital evidence
Identifying digital evidence
Gathering digital evidence
Preserving digital evidence
Analysis of digital evidence
Tools
Traces of evidence
Reporting
Future considerations
ch. 4 Authenticating digital data
Issues to be taken into account for the authenticity of electronic documents
General considerations relating to authenticity
Technical considerations relating to authenticity
Organisational characteristics
Towards an understanding of authentication
Judicial approaches to the authentication of digital data
Contents note continued: ch. 5 Mechanical instruments: the presumption of being in order
Presumptions
Proof of reliability
Problems with software
Of the use of language and `bugs'
The nature of `reliable'
Re-introduction of the presumption
Challenging the presumption
`Working properly'
ch. 6 Encrypted data
Methods to obtain decrypted data
Refusal to reveal the key
England & Wales
United States of America
Defence application to disclose encrypted data: Canada
Encrypted data: the UK statutory regime
Surveillance Commissioner
The infrastructure
Disclosure of a key
Failure to comply with a notice
Tipping off
ch. 7 Using graphical technology to present evidence
Basic court technology
The effect of using visual evidence
Technology
Examples of computer-generated visualisations in the US
Virtual reality technology in US courts
Contents note continued: Examples of computer-generated visualisations in England and Wales
Computer-generated visualisations in Australia
Issues arising from the use of computer-generated visual images in court
The effect of the use of computer-generated visual images in court
Advantages and disadvantages of computer-generated visual images in court
Recommendations regarding the use of computer-generated visual images in court
Introducing computer-generated animations and simulations into legal proceedings
The factual foundation
The underlying scientific or technical theory
Authenticity of the simulation
Prejudicial effect
ch. 8 Australia
Relevance and admissibility
The `best evidence' rule
The expert witness
Electronic transactions and electronic signatures
Civil proceedings
Pre-commencement powers
Destruction of evidence
Urgent search and seizure orders (Anton Piller orders)
Contents note continued: Discovery
Confidentiality
Privacy
Criminal proceedings
Pre-trial
Seizing electronic evidence from a computer at the premises
Seizing electronic equipment
Evidence that may be taken from a computer
Electronic evidence that is seized
Damage to electronic equipment
Warrants to enter
Admissibility
Defects in warrant
Seizure of evidence relating to other offences
Offences for breaches of privacy
Disclosure
Regulatory bodies
ch. 9 Canada
Introduction: The Canadian legal landscape
Admissibility and weight
Types of evidence
Primary and secondary evidence (relevance)
The rules of evidence
Electronic documents
Best evidence rule
Web-based evidence
Electronic signatures
Computer-generated animations and simulations
Video-tape and security camera evidence
Freedom of information and privacy
Before action
Discovery
Contents note continued: Confidentiality and legal professional privilege
Before trial
Trial
ch. 10 England & Wales
Evidence
Direct and indirect evidence
Real evidence
Best evidence
Primary and secondary evidence
Weight
Document
Book or paper
Instrument
Writing
Record
Hearsay
Exception to the hearsay rule: Bankers' Books
Video-recorded and tape-recorded evidence
Data protection
Freedom of information
Enterprise Act
Obtaining disclosure from third parties
Disclosure from foreign countries
Search orders
Service
Authenticity of evidence
Confidentiality and legal professional privilege
Contents note continued: Conducting a criminal investigation across state borders
Encrypted data
Evidence from other jurisdictions
ch. 11 European Union
Investigations
Interpretation
Preliminary investigation proceedings
Admissibility of evidence
Competence
Mutual recognition in criminal matters
Mutual assistance in criminal matters
Criminal investigation and prosecution
Eurojust
The European Prosecutor
Police cooperation
The challenges of criminal law and procedure
European arrest warrant
European evidence warrant
European investigation order
ch. 12 Hong Kong Special Administrative Region, People's Republic of China
Law of evidence in general
Sources of law
Electronic records
Electronic and digital signatures
Contents note continued: The role of expert witnesses
Rules of production of electronic evidence
Business records
Pre trial
Records admitted under s 22A, EO
Evidence by way of live television link or video recording
Authentication
Dealing with documents at the end of proceedings
ch. 13 India
Law of evidence
Information technology law in India
Amendments to the Evidence Act
Parameters for evidence to be admissible
Relevance
Appreciation
Authentication and presumptions
Miscellaneous provisions
Amendments to the Banker's Book Evidence Act, 1891
Notice by electronic means
Amendments to the IT Act
Authentication of electronic records
Digital Signature and Electronic Signature
Recognition of electronic records
Jurisdictional issues in India
Contents note continued: Jurisdiction for civil proceedings
Jurisdiction for criminal cases
Jurisdiction for international cases
Summons and discovery
Costs
Investigation
Search and seizure of digital evidence
Cyber forensics in India
ch. 14 Ireland, Republic of
Hearsay rule
Authenticity
Recent legislative developments
Anton Piller Orders
Privilege
The best evidence rule
Unlawfully obtained evidence
Right of witnesses to give evidence by live television link
Before trial: Obtaining evidence in criminal proceedings
Disclosure and preservation of evidence
Admissibility of evidence at trial
ch. 15 New Zealand
Presumptions and evidence produced by machine
Contents note continued: Documents and peculiarities of admissibility
Reconstructions, simulations and experiments
Inspection
Urgent search and seizure
The privilege against self-incrimination
Specific relationship privileges
Privileges arising from relationships of trust and confidence
Search warrants
Search and Surveillance Act 2012
ch. 16 Scotland
The Scottish legal system
The nature of the law
The court system
The Scots law of evidence
Common law principles
Legislative innovation
divergence of civil and criminal rules
Perceived problems surrounding the admissibility of electronic evidence
Acquisition of evidence
The presentation of electronic evidence in court
Electronic images
Remote evidence
Contents note continued: Computer-generated evidence and the role of experts
The digitisation of paper evidence
Criminal procedure
Digitisation of paper and electronic recording of evidence
Practical constraints
Conclusion
ch. 17 Singapore
Introduction to the Singapore Evidence Act
Digital evidence and the Singapore Evidence Act
Admitting computer output
the 1996 regime
Modes of admissibility for digital evidence
Authenticating digital evidence
Admitting electronic evidence
the new regime
Authentication and electronic records
General presumptions of authenticity
Secure electronic records
Other enabling legislation
Other rules of evidence
The role of the solicitor and client
Third parties
Non-disclosure and its consequences
Urgent search and seizure orders
The use of forensic tools and the expert witness
Illegally obtained evidence
ch. 18 South Africa
Background
The Computer Evidence Act of 1983
The UNCITRAL Model Law
The ECT Act of 2002
Data messages and their admissibility
Requirements for a data message to be admissible
Original form
Production
Hearsay and its exceptions
Exception provided by the Law of Evidence Amendment Act
Exception where the author of a data message is not available
Exceptions for business records
Data messages as real evidence
Doubts about accepting data messages as real evidence
Reliability of data messages
Graphics, audio, and video
Computer programs
Contents note continued: Witnesses and expert witnesses for data messages
Evidential weight of data messages
Presumptions in favour of data messages
Presumption in favour of advanced electronic signatures
Presumption in favour of data messages made in the course of business
Common law presumption in favour of public documents
Guidelines for assessing the evidential weight of data messages
Records and confidentiality
Duty to keep records
Confidential information
Data messages in civil proceedings
Urgent search and seizure (Anton Piller) orders
Discovery in terms of the High Court Rules of Court
Access to information in terms of the Promotion of Access to Information Act
Evidence improperly obtained
Expert witnesses
Limiting the use of digital evidence
Electronic service and filing papers
Data messages in alternative dispute resolution
Data messages in criminal proceedings
Contents note continued: Interception centres and the Office for Interception Centres
Interception directions
Decryption directions
Evidence obtained without the required authority
Using electronic equipment in court
Electronic forensics
Interpreting the law of evidence
ch. 19 United States of America
Pre-filing investigation and retention
Sanctions for spoliation
Trial.
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