ADMISSIBILITY OF EVIDENCE

When a missing person needs to be traced or surveillance work needs to be done, the attorneys call a Private Investigator to do the job. These are the men who often work under cover to find important facts to be used as evidence in court and the Private Investigator testifies in court with this information about fraud or other illegal actions.

Therefore, anything a private investigator sees/documents is admissible evidence in court. However, PIs are not obligated by law (as law enforcement IS obligated by law) to reveal their observations or seizures to the other side. For example, in one of our cases, we were lawfully in our client’s estranged wife’s residence when we documented extensive drug use and manufacture. We photographed the scene and our client’s attorney used these photographs to obtain sole custody for our client’s son. What if the estranged wife’s attorney had caught wind of this evidence and subpoenaed us to turn over this documentation? We would have used the work-product doctrine (which has nothing to do with 4th amendment protection and has everything to do with attorney-client privleges) to bar the revelation of the documents and our testimony. However, this is an empty hypothetical because the other side had no interest in seeing damning evidence.

When people speak in a public place, anything they say or are observed doing is admissible in court. Eavesdropping, on the other hand, is listening in (or documenting) private conversations/actions, and those are not admissible in court. For example, if someone has a “legitimate expectation of privacy in the communication” (for example, they’re in their living room having a conversation in a hushed tone of voice), it would be eavesdropping to use a parabolic microphone to record that conversation. If, however, they’re leaning out the window of their living room, talking to someone inside the house, but their voice can be heard from the street, that is not a legitimate expectation of privacy in communication and can be documented and forwarded as evidence. Colleen captured such a conversation in an insurance investigation and it was used as evidence at trial.

On the position of electronic evidence, sections 90A, 90B and 90C of the Evidence Act 1950 affirm the admissibility of electronic evidence in Malaysia. The main issue centered on whether the existing laws relating to the process of gathering evidence in civil and criminal cases can also be applied in e-commerce or e-contract and computer crimes cases. The research analyzes the application of the existing procedures of gathering evidence under the Rules of High Court 1980 (RHC) and the Criminal Procedure Code (CPC) to the gathering of electronic or computer evidence in the above cases.

The relevant laws such as Electronic Commerce Act 2006, Contracts Act 1950, Penal Code, Computer Crimes Act 1997, Communications and Multimedia Act 1998, Digital Signature Act 1997 and Evidence Act 1950 are also examined. evidence changes according to the development in the society, the nature of business and the development in the information communication technology or ICT environment. The ICT environment aspires improvement and development in e-commerce and e-court system. At the same time, it also encourages cybercrimes activities such as online fraud, defamation, theft and threat.

In litigation process, liability or culpability of a person or an entity depends on the evidence produced by the parties. The evidence varies from paper to other physical evidence and often backup by oral or testamentary evidence given by witness under oath.