Proving the Negative

Last night I saw upon the stair
A little man who wasn’t there
He wasn’t there again today
Oh, how I wish he’d go away

William Hughes Mearn, “Antigonish” (1899)

“What this does, is puts a cloud over every single case that comes in, because once I can challenge the integrity of your office, the individual cases don’t matter.”
Marvin Barnett, Detroit criminal defense attorney, regarding disclosure of lack of control and accountability over evidence at the Detroit Crime Lab.

Proof of Document Integrity — As Yogi Berra would say, “You don’t need it until you need it.”

If you need to assure that a court document has not been altered since it was received or created, what do you do? If you are using hard copy documents and files, you know the contents of the document are the same as when they were filed, because … Well, come to think of it, how do you know? Who’s to say that the contents have not been altered in the meantime? How do you prove the negative (“He wasn’t there again today…”)?

In the world of paper documents, courts typically try to follow the evidentiary principal of Chain of Custody: Keeping unbroken track of every place it has been and everyone who has come in contact with it. Then, it becomes a simple (well, not really simple at all!) matter of having everyone who ever came in contact with the document each prove that he or she did not alter the document.

True, occurrences of document altering and fraud may appear to be rare, but are they? It is almost impossible to say with a paper filing system because no evidence is left behind. For example, if a document is removed from a paper file, there may be no evidence that it ever existed. In this context, maintenance of the concept of trustworthiness of the Chain of Custody is critical. To make that happen, the Chain of Custody must be rigorously protected every single day; because as Mr. Barnett noted above, once your integrity is questioned, nothing is trustworthy.

Fortunately, Electronic Content Management (ECM) technology can help. Closer analysis reveals that Chain of Custody is at heart merely a tool or process to effectuate a more general principal. Generally Accepted Recordkeeping (GARP) Principal Number Two – Record Integrity – states

“A recordkeeping program shall be constructed so the records and information generated or managed by or for the organization have a reasonable and suitable guarantee of authenticity and reliability.

Integrity of a record is directly related to the ability to prove that a record is authentic and unaltered [emphasis added]…..”
ARMA International GARP

A reliable document Chain of Custody in the paper world is merely a means attempting to protect the Principal of Integrity. (Albeit an expensive, labor-intensive, highly unreliable, almost-never-completely followed means). Even with special viewing areas and monitors, do courts control ALL access by ALL staff, ALL attorneys, and ALL judges, not to mention cleaning and security staff? Not usually.

ECM provides a built-in mechanism for maintaining an audit trail of the Chain of Custody for court documents, providing end-to-end assurance of document integrity. ECM users view documents on screen and don’t come in contact with the physical file. From identity and signature authentication (when needed) at the front end, through tracking who accesses each document and when, to ”locking out changes” to prevent tampering, ECM absolutely protects document integrity, making “proving the negative” automatic.

While improving Chain of Custody tracking and document integrity may not be a leading reason why courts move to adopt ECM (user efficiency is the key reason), it certainly is an important one (even though you don’t need it until you need it). And if your court has implemented ECM but has not yet developed or implemented processes to take advantage of the document integrity capabilities, you should strongly consider taking a look at it, both for safety and for savings.

One response to “Proving the Negative

  1. Pingback: eFiling: Audit Trail and Confidentiality | Order in the Court

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s