On 1 April, Jonas Ekfeldt held his dissertation defense on “Information technology evidence” at Stockholm University, Department of Law. The complete thesis is available here (in Swedish): “Om informationstekniskt bevis”.
The thesis examines a phenomenon previously not researched within legal science in Sweden; the occurrence of information technology evidence in legal proceedings, and the consequences resulting from such evidence within practical legal and judicial decision-making.
One of the main problems identified by Jonas Ekfeldt in regard to the use of information technology evidence concerns the knowledge of the adjudicator. In the thesis it is concluded that “it has emerged that there are, in practice, very high requirements placed on judges in connection with their handling of information technology evidence (the knowledge problem). In order to properly evaluate information technology evidence, judges in court are – to a greater extent than for other types of evidence – in need of (objective) knowledge supplementary to that provided by parties and their witnesses and experts.”
Problems have also been identified in other areas, primarily as a result of far-reaching consequences of representational evidence upon its evaluation and, moreover, of the quantities of information that are generated. Furthermore, the current legal terminology also constitutes a complex of problems in and of itself. In the thesis it is concluded that this problem of evidence terminology associated with information technology evidence is (i) the conceptual convergences between the terms “evidentiary fact” (Sw. bevisfakta) and “production/means of evidence” (Sw. bevismedel), and (ii) that neither the sources of error of information technology evidence, nor other aspects of its composition, can be assessed based on how the evidence is referred to. One consequence is that higher requirements are placed (on all parties concerned) regarding precision in the specification and identification of digital evidence
The technical knowledge (or lack of) is a general problem within the legal profession, not just in regard to court proceedings. Applying technology to improve practice is a continuing challenge for all legal professional and during the past years there have been vivid discussions about the need for better technical skills and understanding, and for legal professionals to use the technology to work more efficient and provide better services for clients. But what is evident from this thesis is that in regard to court proceedings it might also be a legally security question and a question about the trust in the legal system and the competence of courts. As discussed at the dissertation defense, legislation is far behind the general development in this area. In combination with the technical complexity and the adjudicator’s knowledge issues, there is a large risk that courts will not manage to evaluate the information technology evidence correctly.
Unfortunately, the subject is not addressed to any greater extent at Swedish law schools. There is therefore an urgent need for further research focused on matters regarding both standard of proof for, and evaluation of, information technology evidence, as well as discussions within the legal profession. Aside from any practical legal and business skills, law schools also need to teach students about practice and information management, including the use of technology and the consequences resulting from the use of information technology evidence within practical legal and judicial decision-making.
As Jonas Ekfeldt points out in his thesis: “Ultimately, it is a question about maintaining confidence in our legal system.”