Louisiana Insurance Litigation Blog

1. THE DIGITAL AGE

• Admissibility of digital evidence:

The 2003 Louisiana Legislature passed Act 1135 amending the provisions of the Louisiana Code of Evidence Article 1001 (3) to provide that digital evidence from palm pilots, the blackberry, e-mail, and related evidence is to be treated as original for evidentiary purposes.

This and similar provisions of the Code of Evidence (e.g. Art. 1003.1) fail to recognize the potential for abuse of digital evidence. The problem with e-mail and any digital evidence is that it may be deleted, altered or preserved incorrectly. There is a presumption of admissibility of electronic duplications in Article 1003.1 by providing “a duplicate may be deemed inadmissable or excluded solely because it is in electronic format”, as will be seen from the following, this is a problem.

We have all heard of there problems in several high profile cases, such as the Enron Case where e-mail evidence was not properly maintained. Other cases of e-mail being preserved improperly or subject to deletion is the subject of inquiries and prosecution for fraud or obstruction of justice. I know I need not cite you to the various corporate fraud cases pending where evidence in digital storage facilities has been altered or improperly maintained. Suffice to say that the full potential for abuse of digital evidence is only now being recognized.

The articles on digital evidence presume that the digital evidence can be clearly identifiable as the original when in fact it is seldom that digital evidence is not changed to the extent that it is automatically re-formatted on the recipient machine. This presentation is not intended to be a technical presentation, but is intended to be one that focuses on problems with digital evidence. Therefore, I will refrain from extensive discussion of technical issues that relate to how evidence on digital formats can be so easily and improperly stored, improperly reproduced, transmitted, deleted modified and in many cases intentionally altered. Instead, this paper will focus on practical legal problems which we have recently encountered in cases.

Continue reading "Is It The "Real Thing"?" »

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I. Introduction

There is no field of governmental activity concerning which the people are as poorly informed as the field occupied by the judiciary.
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It is highly inconsistent to complain of the ignorance and apathy of voters and then to ‘close the windows of information through which they might observe and learn.’ Generally only idle people, pursuing ‘idle curiosity’ have time to visit court rooms in person. What harm could result from portraying by photo, film, radio and screen to the business, professional and rural leadership of a community, as well as to the average citizen regularly employed, the true picture of the administration of justice? Has anyone been heard to complain that the employment of photographs, radio and television upon the solemn occasion of the last Presidential Inauguration or the Coronation of Elizabeth II was to satisfy an ‘idle curiosity’? Do we hear complaints that the employment of these modern devices of thought transmission in the pulpits of our great churches destroys the dignity of the service; that they degrade the pulpit or create misconceptions in the mind of the public? The answers are obvious. That which is carried out with dignity will not become undignified because more people may be permitted to see and hear.

– Justice Otto Moore of the Colorado Supreme Court, 1956

In this day and age of near constant, twenty-four hour news coverage, accessible through numerous television outlets (to wit, CNN, CSPAN, Fox News, MSNB, et al.), as well as through the more recent medium of internet distribution, access to the inner-workings of our government, on both the state and federal levels, is at an all-time high. While this statement is generally true for and applicable to both the executive and legislation branches, as sagely summarized by Justice Moore over fifty years ago, it can not be said to apply nearly as much to the judiciary. As for the Article III entities, it has been succinctly stated that there exists neither a constitutional prohibition against, nor a constitutional presumption in favor of allowing cameras in the courtroom. This being so, the debate surrounding this issue has naturally flourished and is no less heated today.

As will be explored in greater depth in later sections of this paper, currently, all fifty states allow at least some camera coverage of judicial proceedings, including thirty-seven states in which criminal trials may be televised. Only the District of Columbia bans camera coverage of all judicial proceedings. In the federal system, cameras are only permitted to be used in the Circuit courts of appeal and then only upon the discretionary approval of the presiding judges. The greatest hurdle to expanded camera coverage, the U.S. Supreme Court, has consistently remained opposed to cameras within its own hallowed halls. As discussed later, this stalwart opposition from the federal judiciary just may be softening, however.

Many state courts have sided with the supporters of electronic and video media coverage in the courts arguing that the rights of free speech and/or freedom of the press under the First Amendment and state constitutional equivalents. In contrast, for those opposed to the greater expansion of such media into federal courts, particularly at the district levels, it is argued that such media coverage and camera exposure infringes on a defendant’s Sixth Amendment right to a fair trial and also perhaps upon the Fourteenth Amendment right to due process.

This paper discusses both current and historical state and federal approaches to cameras in the courtroom. This paper also sets out the most cited arguments both for and against the expansion of cameras and of electronic media coverage in courtrooms. Last, this paper presents examples of pending legislation intended to expand cameras and electronic media coverage in courtrooms ultimately concluding that such legislation, if made law, will greatly serve the interests of justice through access, accountability, and education; that is, through the spreading of sunshine in the courtroom. Indeed, as Justice Brandeis once wrote: “Sunshine is said to be the best of disinfectants.”
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Continue reading "Cameras in the Courtroom, Part I: Louisiana Approach (Introduction)" »

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