Admissibility of Evidence - Admissibility of Electronic Evidence
To be admissible in evidence the item must be relevant and not barred by any exclusionary rule. In addition, the proponent of an item of real evidence must authenticate it, that is, demonstrate its genuineness, thus laying a foundation for its admission. [1] When a writing or an item of physical proof is sought to be introduced in evidence it must be authenticated by a showing that the item sought to be introduced is what its proponent claims it to be. [2] Stated another way, "In order for a piece of evidence to be of probative value, there must be proof that it is what its proponent says it is. The requirement of authentication is a condition precedent to admitting the evidence."[3]
CPLR 4518(a) which is known as the Business Records rule provides that: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.” [4]
An “electronic record’ is defined in § 302 of the state technology law. Article I of the state technology law is known as the Electronic Signatures and Records Act (ESRA). It is intended to support and encourage electronic commerce and electronic government by allowing people to use electronic signatures and electronic records in lieu of handwritten signatures and paper documents. Subsequent to the adoption of the Electronic Signatures and Records Act, the federal Electronic Signatures in Global and National Commerce Act, [5] known as the ESign Law, was adopted to permit and encourage the expansion of electronic commerce in interstate and foreign commercial transactions. Like the Electronic Signatures and Records Act, this federal law authorizes the use and acceptance of electronic signatures and electronic records in the context of these commercial transactions. It was the intent of this bill to ensure that these laws continue to complement each other in achieving their stated purposes. Rather than seeking to modify, limit or supersede federal law, the legislatures statement of intent in adopting this law finds that it is in the best interest of the state of New York, its citizens, businesses and government entities for State and federal law to work in tandem to promote the use of electronic technology in the everyday lives and transactions of such individuals and entities." [6]
State Technology Law § 306 provides that in any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of CPLR article forty-five including, but not limited to section 4539.[7] These terms are defined in State Technology Law §302.[8] "Electronic" means of or relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.[9] An "Electronic record" means information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.[10] "Electronic signature" means an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record. [11]
State Technology Law § 305 (3) provides that an electronic record shall have the same force and effect as those records not produced by electronic means. In accordance with State Technology Law § 304, unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature has the same validity and effect as the use of a signature affixed by hand.[12]
[1] See Prince, Richardson on Evidence § 4-203 [Farrell 11th ed]
[2] See Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 9:1; People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 163, 399 N.E.2d 1177, 1183 (1979); People v. Corey, 148 N.Y. 476, 488, 42 N.E. 1066, 1070 (1896).
[3] U.S. v. Sliker, 751 F.2d 477, 497 (2d Cir.1984)
[4] Laws of 2002, Ch. 136, § 1, inserted the second and third sentences in subdivision (a) relating to the admissibility of electronic records.
[5] 15 U.S.C. §§ 7001-7006
[6] L.2002, Ch. 314, § 1
[7] Formerly § 106, added Laws of 1999, Ch. 4, § 2, eff. March 26, 2000. Renumbered § 306, Laws of 2004, Ch. 437, § 1, eff. Sept. 14, 2004.
[8] Formerly § 102, added Laws of 1999, Ch. 4, § 2, eff. March 26, 2000. Amended Laws of .2002, Ch. 314, § § 2, 3, eff. Aug. 6, 2002. Renumbered § 302, Laws of 2004, Ch. 437, § 1, eff. Sept. 14, 2004.
[9] State Technology Law § 302 (1).
[10] State Technology Law § 302 (2).
[11] State Technology Law § 302 (3).
[12] State Technology Law § 304 (2); (Formerly s 104, added L.1999, c. 4, § 2, eff. March 26, 2000. Renumbered § 304, L.2004, c. 437, § 1, eff. Sept. 14, 2004.)
To be admissible in evidence the item must be relevant and not barred by any exclusionary rule. In addition, the proponent of an item of real evidence must authenticate it, that is, demonstrate its genuineness, thus laying a foundation for its admission. [1] When a writing or an item of physical proof is sought to be introduced in evidence it must be authenticated by a showing that the item sought to be introduced is what its proponent claims it to be. [2] Stated another way, "In order for a piece of evidence to be of probative value, there must be proof that it is what its proponent says it is. The requirement of authentication is a condition precedent to admitting the evidence."[3]
CPLR 4518(a) which is known as the Business Records rule provides that: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.” [4]
An “electronic record’ is defined in § 302 of the state technology law. Article I of the state technology law is known as the Electronic Signatures and Records Act (ESRA). It is intended to support and encourage electronic commerce and electronic government by allowing people to use electronic signatures and electronic records in lieu of handwritten signatures and paper documents. Subsequent to the adoption of the Electronic Signatures and Records Act, the federal Electronic Signatures in Global and National Commerce Act, [5] known as the ESign Law, was adopted to permit and encourage the expansion of electronic commerce in interstate and foreign commercial transactions. Like the Electronic Signatures and Records Act, this federal law authorizes the use and acceptance of electronic signatures and electronic records in the context of these commercial transactions. It was the intent of this bill to ensure that these laws continue to complement each other in achieving their stated purposes. Rather than seeking to modify, limit or supersede federal law, the legislatures statement of intent in adopting this law finds that it is in the best interest of the state of New York, its citizens, businesses and government entities for State and federal law to work in tandem to promote the use of electronic technology in the everyday lives and transactions of such individuals and entities." [6]
State Technology Law § 306 provides that in any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of CPLR article forty-five including, but not limited to section 4539.[7] These terms are defined in State Technology Law §302.[8] "Electronic" means of or relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.[9] An "Electronic record" means information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.[10] "Electronic signature" means an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record. [11]
State Technology Law § 305 (3) provides that an electronic record shall have the same force and effect as those records not produced by electronic means. In accordance with State Technology Law § 304, unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature has the same validity and effect as the use of a signature affixed by hand.[12]
[1] See Prince, Richardson on Evidence § 4-203 [Farrell 11th ed]
[2] See Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 9:1; People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 163, 399 N.E.2d 1177, 1183 (1979); People v. Corey, 148 N.Y. 476, 488, 42 N.E. 1066, 1070 (1896).
[3] U.S. v. Sliker, 751 F.2d 477, 497 (2d Cir.1984)
[4] Laws of 2002, Ch. 136, § 1, inserted the second and third sentences in subdivision (a) relating to the admissibility of electronic records.
[5] 15 U.S.C. §§ 7001-7006
[6] L.2002, Ch. 314, § 1
[7] Formerly § 106, added Laws of 1999, Ch. 4, § 2, eff. March 26, 2000. Renumbered § 306, Laws of 2004, Ch. 437, § 1, eff. Sept. 14, 2004.
[8] Formerly § 102, added Laws of 1999, Ch. 4, § 2, eff. March 26, 2000. Amended Laws of .2002, Ch. 314, § § 2, 3, eff. Aug. 6, 2002. Renumbered § 302, Laws of 2004, Ch. 437, § 1, eff. Sept. 14, 2004.
[9] State Technology Law § 302 (1).
[10] State Technology Law § 302 (2).
[11] State Technology Law § 302 (3).
[12] State Technology Law § 304 (2); (Formerly s 104, added L.1999, c. 4, § 2, eff. March 26, 2000. Renumbered § 304, L.2004, c. 437, § 1, eff. Sept. 14, 2004.)
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