Chapter2
Admissibility and Inadmissibility of digital Evidence in Oral and Documentary
Evidence
The essence of the best evidence principle relates to the existence or non-
existence, occurrence or non-occurrence, possibility or impossibility, entitlement or lack
thereof, of a particular matter, which is contested between opposing parties. In such
disputes, each party must logically and methodically present compelling arguments and
evidence to substantiate their claims. The strength of their case depends on who can
provide more proving and legally sound proof. When presenting evidence, it must meet
the standards of reliability in substance and comply with the rules and procedures of
evidence law.
To adjudicate cases, evidence may be presented in two forms. Oral and
Documentary evidence. This section specifically describes the admissibility and
inadmissibility of Digital evidence in Oral Evidence and Documentary evidence ,its
relevance in legal proceedings. Digital evidence can be presented as either oral or
documentary evidence, depending on how it is introduced in court. Its admissibility refers
to whether the court accepts it as valid and reliable proof, while inadmissibility means it
is rejected due to issues like lack of authenticity, improper collection, or failure to meet
legal standards. Understanding the rules for accepting or rejecting digital evidence is
important to ensure justice and fairness in the courtroom.
2.1 Digital Evidence related to Oral Evidence
Generally, spoken evidence given by a witness in court, usually make under oath
are Oral Evidence. Oral evidence includes evidence that, by reason of any disability,
disorder, or other impairment, a person called as a witness gives by writing or by signs or
by way of any device. In broad terms, there are two types of oral evidence; testimony and
hearsay.
According to Section 3 of the Evidence Act Myanmar (1872), oral testimony
refers to statements given by witnesses in relation to matters under judicial inquiry, as
permitted by the court. These statements are considered testimonial evidence. From such
testimony, facts beyond what is recorded in documentary evidence may be inferred or
clarified. Oral testimony refers to statements made by a witness through spoken
words. Nevertheless, in cases involving a mute or speech-impaired witness, testimony
may also be given in writing or through gestures or other physical actions, and still be
regarded as oral evidence.
Due to the inherent weaknesses and potential for alteration in oral testimony, it is
generally considered less reliable than documentary evidence. Hence, the common legal
expression: “Oral testimony is but a spoken word.”
Despite its limitations, approximately 90% of judicial decisions rely on oral
testimony as the primary form of evidence in legal proceedings.1
Video-Conferencing
The facility of producing evidence by recording it through the process of video-
conferencing has been permitted in criminal cases. The Court expressed the view that
there cannot be any plausible objection for adopting the same procedure in civil cases
also. But necessary precautions must be taken as to both identifying of witnesses and the
accuracy of the equipment used. Where a witness of a party requests that the evidence of
a witness may be recorded through video conferencing, the court should be liberal in
granting such a prayer.2
When using evidence through live video or live television links to give
statements, the court must consider whether the communication follows the law in that
location. The court will also check how secure the technology is, whether there is any
risk of information being intercepted or deleted, and if the communication method can
ensure privacy and security. By considering these factors, the court may allow a
statement to be given through live video or live television links.3
Hearsay
1
ဦးသက်ဖေ ၊ သက်သေခံဥပဒေ၏သိကောင်းစရာများ၊ တတိယအကြိမ်၊ ၂၀၁၈
2
International Planned Parenthood Federation v Madhu Bala Nath, AIR 2016 Del 71, paras 14, 15 and 16.
3
ဦးသက်ထွန်း ၊ သက်သေခံအက်ဥပဒေဆိုင်ရာမှတ်စုကြမ်း၊ ၂၀၂၀
According to the Evidence Act (1872), Oral evidence must be direct. The person
who has direct knowledge of the fact in question must come to Court and give evidence.
One person must not repeat the statements of another as to what the other saw, heard or
perceived, or as to the opinion that other holds. But this rule is subject to the exceptions
mentioned below in which statements are admissible.
When a witness begins to repeat, as a truth, the statement of another person, he
must be stopped. If the party examining the witness wishes to use the statement as
evidence he must show that it is admissible under one or another section (s.136). The like
rule applies to documentary evidence (s.144); documents must be produced, except in
circumstances in which secondary evidence is admissible (s.64) And when oral evidence
refers to the existence or condition of any material thing the Court may require such thing
to be produced (s.60).4
So that under the provisions of Section 60 of the Evidence Act, hearsay evidence
is generally inadmissible when presenting oral testimony. However, it's important to note
that not all hearsay is inadmissible. The nature of hearsay evidence is that the individuals
providing it was not personally witness or experience the events related to the case.
Instead, they are individuals who heard information indirectly from someone else who
was an intermediary to the event.
Direct witnesses, who saw the event firsthand, can provide more accurate and
reliable information than those who heard it indirectly. Those who provide hearsay only
relay what others have told them. They cannot know for certain whether the person who
told them actually experienced the event, or if they are relaying the information
truthfully. Therefore, information heard indirectly is often unreliable and hearsay
testimonies are often indefinite or uncertain.
Nevertheless, hearsay evidence is often the closest form of evidence to the
original source when direct testimony cannot be presented. In such situations, it becomes
unavoidable to use hearsay evidence. This is precisely why the Evidence Act includes
provisions for the admissibility of certain types of hearsay evidence.
4
The Law of Evidence by The Late Sir Arthur Eggar, P-24
To determine when hearsay evidence is admissible, it shall be considered
according to Section 32 of the Evidence Act by the court. Hearsay evidence that falls
within the scope of this section is admissible as evidence, despite being hearsay.
Section 32 provided that, statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an amount of delay or expense
which under the circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases: -
(1) When it relates to cause of death or
(2) is made in course of business or
(3) against interest of maker or
(4) gives opinion as to public right or custom, or matters of general interest or
(5) relates to existence of relationship or
(6) is made in will or deed relating to family affairs or
(7) in document relating to transaction mentioned in section 13, clause (a) or
(8) is made by several persons and expresses feelings relevant to matter in question.
In summary, all oral testimony generally needs to be direct evidence. However, if
a witness is deceased, cannot be found, is in a condition where they cannot give evidence,
or if summoning them to court would incur excessive cost or delay, hearsay evidence can
be presented if it aligns with the eight exceptions outlined in Section 32 of the Evidence
Act.
Currently, under the 2015 amendment to the Evidence Act, oral testimony is
permitted via video conferencing. This means that witnesses who would otherwise incur
significant cost or delay when summoned to court under Section 32 can now provide
direct testimony using video conferencing. This significantly increases the value of oral
testimony.
However, in Myanmar, its use is still very limited, except for some child-related
cases. An analysis of this low usage reveals reasons such as technological difficulties or a
lack of internet connectivity. Another point is the shortage of technically proficient staff
to assist courts in obtaining evidence through video conferencing. It can be concluded
that establishing Digital Forensic Departments and employing technically skilled
personnel in courts would greatly facilitate the examination of electronic evidence and
the process of taking testimony via video conferencing.
2.2 Digital Evidence related to Documentary Evidence
In the 69th Report in this behalf that no material amendment is necessary and that
the only correction necessary is to drop the words ‘and includes’.
‘Document’ has been defined as “any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that matter”. The
definition covers any type of document including electronic records. Record of the matter
is one thing and the deciphering of its meaning is another thing.5
Evidence in the form of written documents is called "documentary evidence."
Many ways in which it differs from other types of evidence may be identified. Oral
evidence, circumstantial evidence, hearsay evidence, etc., are examples of other types of
evidence. Documentary evidence is often more reliable than other forms of evidence. A
copy of a document may have omissions or faults, whether intentional or not, hence the
original must be shown in most cases if the Indian Evidence Act of 1872 is to be
followed.6
Documentary evidence consists of any information that can be introduced at trial
in the form of documents. While it is often thought of as information written down on
paper, such as letters, a contract or a will, documentary evidence more broadly
encompasses information recorded on any media on which information can be stored.
Under both the Conn. Code Evid. And the Fed. R Evid., this includes information stored
on computers and other media, such as e-mails, Web pages, and other data.7
All information generated or stored digitally during computer use may be
admissible as Electronic evidence. It includes information entered by hand into a device,
5
[Link]
6
KB, N. (2021). Determinants of CSR disclosure: an evidence from India. Journal of Indian Business
Research, 13(1), 110-133.
7
CHAPTER 9 pg-3,Documentary Evidence Michelle L. Querijero, [Link] & Goodwin LLP,
Hartford
data generated by a Computational transaction or in response to a user request,
information generated and stored by a device processing information inside its matrix,
and information generated by an automata device. So, everything that may be found in
the memory of a computer, such as a database, an OS, an applications programme, a
computer-generated model that extrapolates outcomes, an Electronic or voice mail
message, or even instructions, is considered electronic documentary Evidence® (Born,
2021).8
In the case of G Shyamal Rajini v MS. Tamizhnathan9 that in a matrimonial
proceeding for dissolution of marriage, the wife was alleged to have abused and
threatened the husband on his cell-phone and the same was recorded in the phone. The
husband re-recorded the matter in an audio CD. The cell-phone was not produced. Only
the audio CD was exhibited. The wife objected that the audio CD was not admissible as it
was fabricated. The audio CD was marked by the court as an exhibit with this condition
that when it was displayed, an opportunity would be given to the wife for cross-
examining the husband.
In the case of Sanjaysinh Ramrao Chavan v Dattatray Gulabrao Phalke 10 that
where the only evidence as to demand of bribe by the accused was the conversation
recorded by the voice recorder, the same was sent to the Forensic Laboratory which
stated that the conversation was not in an audible condition and hence, the same could not
be considered for spectrographic analysis. It was submitted that the conversation was
translated and verified by the panch witnesses. It was observed that admittedly the panch
witnesses had not heard the conversation since they were not present in the room and as
the voice recorder itself could not be subjected to analysis, there was no use in placing
reliance on the translated version. Without source there is no authenticity for the
translation. Source and authenticity are the two key factors for an electronic evidence.
In the case of Anurima v Sunil Mehta11 that where a husband had tape recorded
the conversation of his wife with a third person for the purpose of seeking divorce on that
8
Born, G. B. (2021). International arbitration: law and practice. Kluwer Law International [Link], T.
P. (1998)
9
AIR 2008 NOC 476 (Mad).
10
(2015) 3 SCC 123 (para 16), relying on Anvar PV v PK Basheer, (2014) 10 SCC 473.
11
AIR 2016 MP 112, para 6 and 7. See also Preeti Jain v Kunal Jain, AIR 2016 Raj 153, paras 8 and 9.
ground, it was held that the submitted conversation was recorded without the knowledge
of the wife, thus infringing her right to privacy, hence the tapes produced by the husband
were not admissible in evidence.
The legal definition of “document” has evolved to include not just traditional
paper records but also electronic records such as emails, audio files, computer logs, and
digital databases. However, its admissibility depends on meeting strict legal standards to
ensure authenticity and reliability. As courts increasingly rely on digital proof, forensic
expertise and legislative clarity will be pivotal in maintaining evidentiary integrity. As
technology advances, legal systems must continue adapting to balance efficiency,
accuracy, and protection of rights in handling electronic records.
2.3 Legal Standards of Admissibility
The concept of admissibility is a simple one. Courts need to determine whether
evidence is “safe” to put before a jury and will help provide a solid foundation for
making a decision in the case. In practice, admissibility is a set of legal tests carried out
by a judge to assess an item of evidence. This assessment process can become
complicated, particularly when the evidence was not handled properly or has traits that
make it less reliable or more prejudicial. Some jurisdictions have rules relating to
admissibility that are formal and sometimes inflexible, while other jurisdictions give
judges more discretion.12
In accordance with section 60-A, subsection (1) of the Evidence Act, as amended
by the Evidence Act, a witness in any trial may, with the permission of the court, give
evidence directly by video or television link in any of the following circumstances:
(a) If the witness is under (16) years of age.
12
Digital Evidence and Computer Crime Forensis Science,Computers and the Internet,Third
Edition,Eoghan Casey,page 56
(b) If there is an express agreement between the parties to take the testimony of
witnesses by video or television communication.
(c) If the witness is outside the Republic of the Union of Myanmar.
(d) If the court is satisfied that it is fair to take evidence by means of video or
television communication.13
In the Financial Institution Law (2016) , digital evidence related to documentary
evidence
(a) The electronic document which are consistent with one of the following ways
may be accepted as the best way for the evidence:
(i) proof of integrity of the electronic documents system in which the electronic
document was recorded or stored;
(ii) presumption of having been proved concretely.
(b) Notwithstanding anything in sub-section (a),if the printout from the printing
machine is made as manifestly or properly as a recorded or stored documentation in case
that adverse evidence may not be presented, the such printout of electronic document
may be satisfied and accepted as the best way for evidence.14
In case that adverse evidence may not be presented, the accuracy of the recorded
or stored electronic documents system may be proved by any of the following
documentary evidence:
(a) proof that the computer system or the other similar instruments used in the
electronic document system operates properly or although it is operated irregularly, the
systems do not damage the accuracy of the electronic document and have no evidence
which causes the doubt.
(b) being the electronic document recorded or stored by the adverse person to the
person who desires to admit the electronic document.
(c) being the recorded or stored electronic document by a person in his usual and
ordinary course of business though the record or storage of the electronic document is not
under the supervision of the person who desires to establish such document.15
13
The Law Amending the Myanmar Evidence Act(2015)
14
Chapter(XXII)Section(150) Financial Institutions Law(2016)
15
Chapter(XXII)Section(151) , Ibid,
. (a) For the purpose of determining whether or not electronic document is
admissible as evidence under any rule of law, the court may accept as evidence by
presenting the nature and purpose of the electronic document, having related to the
enterprise, business or endeavor used or recorded or stored the electronic document, and
any standard of method, the procedure, usage or practice to be recorded or stored the
electronic document.
(b) The information expressed by electronic document includes data, texts,
sounds, codes, computer programs, software or the databases in the computer ready to be
used.16
Thus, these provisions reflect a modern approach to evidence, recognizing the
importance of flexibility and accessibility. Myanmar’s legal framework reforms by
allowing video testimony and setting clear criteria for admitting electronic documents.
Allowing testimony by video link can also protect vulnerable witnesses (such as minors)
and indicate the evolving needs of justice systems. Additionally, it also allows for
practical solutions, such as accepting printouts or business records, to ensure that the
realities of modern commerce and technology do not hinder the pursuit of justice These
developments ensure that courts can adapt to technological change while upholding
fairness and due process.
2.4 Judicial Interpretation relating to Digital Evidence
Judicial Interpretation related to digital evidence refers to how courts interpret
and apply legal principles when dealing with electronic or digital forms of evidence, such
as emails, text messages, social media posts, computer files, call logs, CCTV footage,
and more. In the process of crime investigation, it is important to fully identify the
16
Chapter(XXII)Section(152), Ibid,
relevant facts and facts in issue , analyze the crime with the ability to do so. Decisions
cannot be made solely based on personal opinion without relying on facts. The court must
identify the complete facts fairly and accurately and make a decision in accordance with
the relevant law. By connecting the obvious facts and the obvious law, a correct decision
can be made.
The Judges interpret different forms concerning with electronic records and
make decision deal with admissibility and inadmissibility of digital evidence in cases.
Among these,U Thiha Ko Ko Vs The Republic of Union of Myanmar
The Supreme Court held that ‘’The copying of data stored on the Main Server on a CD
and its submission as a document of evidence is permitted under Section 3 of the
Evidence Act, Section 63(5) of the Act and Section 65(d) of the Act.”
U Thiha Ko Ko v The Republic of the Union of Myanmar 2020 Criminal
Revision
Fact of the case is that Thiha Ko Ko, who works as a Project Manager at Zeya &
Associates Co., Ltd., No. (145), Thiri Yadanar Shopping Complex, Zabu Thiri
[Link] was secretly contacted without permission in competition with businesses
HAVAC & R (AIRCON) Company, Skyline Engineering Group and other individuals
while working for the company. He was abused the trust, knowing that Zeya &Associates
[Link], had entrusted him with the task of working on the computer provided by the
Zeya & Associates Co., Ltd., knowing that he should keep the business plan forms,
tables, and information that were assigned to him by the company., and knowing that he
should keep them but he deleted them, and returned the computer. hence, Daw Nwe Ni
Aung, a senior project manager at Zeya & Associates Co., Ltd., filed a complaint with the
Zabu Thiri Township Police Station.
The Supreme Court Held that the plaintiff submitted electronic records and
information that emerged from the computer that the defendant Thiha Ko Ko had
deposited. They were copied from the main server and were submitted as evidence by U
Hla Myo Thant (The prosecution witness3) who personally saw and read the documents
while they were on the computer.
Therefore, it must be concluded that the documents from Exhibits (C) to (H-4) are
admissible in evidence in accordance with the provisions of Section 3 of the Evidence
Act. Section 63(5) of the Evidence Act, which states that the statements of a person who
has personally seen the documents are based on the information contained in the
document, and Section 65(d) of the Evidence Act, which states that the original cannot be
easily removed.
The power to decide whether or not to admit a document or not in relation to a
piece of evidence is vested in the judge under Section 136 of the Evidence Act. At this
stage, it is only the stage where documents ( C )to (H-4) are admitted as evidence, and it
is considered to be in accordance with the law.
Thus, the order of the Mandalay Region High Court, which set aside the order of the
Dekkhina Thiri District Court rejecting the admission of documents (C) to (H-4) as
evidence and reaffirmed the order of the original Zabu Thiri Township Court accepting
documents (C) to (H-4) as evidence, was erroneous. Since there is no such thing, it would
not be appropriate to intervene and prepare.
Therefore, this criminal preparation is abandoned.
‘If the evidence is primary evidence and it is authentic, it is permitted by court
according to sectio64 of the Evidence Act. If the evidence is secondary evidence, it is
permitted by court according to section 65 of the Act'. 'But Kyauktada Township Court
held that the audio CD submitted by the plaintiff as evidence should not be accepted as
evidence that is neither primary evidence nor secondary evidence in accordance with the
Evidence Act. Therefore, the plaintiff's application is dismissed.
The plaintiff submitted as evidence a CD of the audio recording of the telephone
conversation between him and the investigating officer and a written transcript of the
conversation on the CD.
The defendants' attorney objected, and after hearing arguments from both sides,
this order was made regarding whether or not the electronic evidence should be admitted.
The plaintiff was unable to provide the date and time of the telephone conversation with
the investigating police, and the fact that the CD recording of the conversation was not
recorded with the telephone handset used by the plaintiff, but with another phone, casts
doubt on the authenticity of the audio.
According to Explanation (3) of Section 62 of the Evidence Act, the plaintiff must
be able to produce the original electronic record of the CD audio recording he wants to
introduce as evidence. Only if he can produce it as clearly and convincingly as stated in
the explanation will the CD record produced by the plaintiff be admitted as evidence as
an original document. If he cannot produce it as clearly and convincingly, then the record
will remain as secondary evidence as per Example (b) of Explanation (3).
Section 64 of the Evidence Act stipulates that only primary evidence shall be
produced in documentary evidence. Section 65 of the Evidence Act stipulates in which
cases secondary evidence may be produced if primary evidence cannot be produced. The
prosecution has also failed to show that the CD audio recording produced by the
prosecution falls within the scope of the cases permitted under Section 65 and may be
produced as secondary evidence.
Furthermore, the CD audio recording of the conversation between the plaintiff
and the investigating police officer, which the plaintiff wanted to introduce as evidence,
was the investigating police officer talking about the interrogations and was in the nature
of statements made by the accused to the police, and was therefore not admissible as
evidence under Section 162(1) of the Criminal Procedure Code.
Based on the above considerations, it is found that the audio CD submitted by the
plaintiff as evidence should not be accepted as evidence, and therefore the plaintiff's
application is dismissed.
In the Yangon Eastern District Court, 2018, Case No. 364, the plaintiff Daw Khin
filed a lawsuit against the defendant U Win Maung for divorce and division of property,
and ordered that the audio recording dated 25-2-2018 not be allowed to be submitted as
evidence during the examination of the plaintiff’s daughter. The plaintiff was not
satisfied with the order and filed an application to the Yangon Region High Court under
Case No. 377 of 2019, which was unsuccessful. The court continued to file this appeal
with the Supreme Court of the Union.
In the case of a lawsuit, the plaintiff copied the audio recording on the mobile
phone of his daughter Shwe(the plaintiff's witness) onto a CD and submitted it to the
court. In order to accept the record as evidence, it will first be necessary to verify that the
CD is a true copy and a copy obtained from an accurate and reliable original in
accordance with Explanation (3) of Section 63 of the Evidence Law. The method of
construction is to compare the mobile phone and the CD in the courtroom. Only if the CD
is a true and accurate copy of the original, will the original audio file be obtained under
Section 62, Explanation (2) of the Evidence Act. Thus, the information in the phone is the
original documentary evidence, and the recovered CD is a copy of the original
documentary evidence. Only after comparing the original audio file and the 23 pages of
the audio file, it can be decided whether it should be admitted as evidence. Only then will
the introduction of the audio file as evidence be in accordance with the legal procedure
and will contribute to a fair judicial system.
In the original case, the court did not proceed in accordance with the procedure of
law by initially requesting that the original mobile phone audio recording be submitted to
the court. Therefore, instead of examining the original mobile phone audio recording, it
examined only the CD and found that the sounds were muffled, the sound was not clear,
and the statements on the CD did not match the written records. The order of the Yangon
Region High Court, which upheld the order of the Yangon Eastern District Court, which
ruled that the evidence should not be admitted, is not in accordance with the provisions of
law and must be amended by the Supreme Court of the Union under Section 115 (c) of
the Code of Criminal Procedure.
Therefore, this amendment is allowed. The orders of the Yangon Eastern District
Court and the Yangon Region High Court are set aside and the plaintiff’s application to
introduce the audio recording as evidence is directed to be reconsidered in accordance
with the procedure of law.
