• 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.

§658. Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; penalties; arson-related claims suspension

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.

(2) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.

(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658 (A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658 (A) (2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment of tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

(2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or the there is insufficient evidence to warrant further proceedings.

(3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.

(4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable attorneys’ fees for the collection of such expenses.

C. (1) All claims brought by insureds, worker’s compensation claimants, or third parties against an insurer shall be paid by check or draft of the insurer to the order of the claimant to whom payment of the claim is due pursuant to the policy provisions, or his attorney, or upon direction of such claimant to one specified; provided, however, that the check or draft shall be made jointly to the claimant and the employer when the employer has advanced the claims payment to the claimant. Such check or draft shall be paid jointly until the amount of the advanced claims payment has been recovered by the employer.
(2) no insurer shall intentionally or unreasonably delay, for more than three calendar days, exclusive of Saturdays, Sundays, and legal holidays, after presentation for collection, the processing of any properly executed and endorsed check or draft issued in settlement of an insurance claim.

(3) Any insurer violating this subsection shall pay the insured or claimant a penalty of two hundred dollars or fifteen percent of the face amount of the check or draft, whichever is greater.

D. (1) When making a payment incident to a claim, no insurer shall require that as a condition to such payment, repairs be made to a motor vehicle, including window glass repairs or replacement, in a particular place or shop or by a particular entity. Any insurer violating the provisions of this Subsection shall be fined not more than five hundred dollars for each offense.

(2) A violation of this Subsection shall constitute an additional ground, under R.S. 22:1173 [fn1], for the commissioner to refuse to issue a license or to suspend or revoke a license issued to any agent, broker, or solicitor to sell insurance in this state.

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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