5.4 Primary and Secondary Evidence

5.4 PRIMARY AND SECONDARY EVIDENCE

Is computer evidence a primary or a secondary evidence?

Primary evidence is an authentic document or item that is offered as proof in a lawsuit. Sometimes, it can be incorrect, or contain minor errors, but this is rare.1 If primary evidence is available to a party, that person must offer it as evidence. However, if primary evidence is unavailable through no fault of the party, he or she may present a reliable substitute for it once it’s unavailability is sufficiently established.2

Secondary evidence differs from primary evidence. It is evidence that has been reproduced from an original document or substituted for an original item. For example, a photocopy of a document would be considered secondary evidence.3 Secondary evidence is usually admitted upon failure to obtain the primary evidence.4

Courts prefer primary evidence because it is the actual item. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule.

Section 64 of the Evidence Act 1950 provides that documents must be proved by primary evidence except in cases under Section 65. On the other hand, Explanation 3 of Section 62 clearly states that a document produced by a computer is a primary evidence.

Section 90A Evidence Act 1950 applies to computer evidence. Subsection (5) of the aforementioned section clarifies the fact that a document shall be deemed to have been produced by a computer whether it is produced directly by a computer or by any means of appropriate equipment such as a printer without the need of any human intervention, direct or otherwise.

SOURCE

1. 2009. Primary Evidence. martygrant.com. 1. (online) http://www.martygrant.com/gen/refs/primary.htm (21 August 2009)
2. 2009. Primary Evidence. Law Library - American Law and Legal Information. 1. (online) http://law.jrank.org/pages/9375/Primary-Evidence.html (21 August 2009)
3. 2009. Definition: Secondary Evidence. Amanda Graham’s Web Page and Circumpolar Info Centre.... 1. (online) http://www.yukoncollege.yk.ca/~agraham/guides/second.htm (21 August 2009)
4. 2009. Secondary Evidence: West's Encyclopedia of American Law. eNotes.com. 1. (online) http://www.enotes.com/wests-law-encyclopedia/secondary-evidence (21 August 2009)

POSTED BY NADHIRAH NA’IEMAH