Burdens of Proof: Cryptographic Culture and Evidence Law in the Age of Electronic Documents

To Reform or Not to Reform

Written Proof 99 signed. Such failure does not imply that the contract is void, or that it cannot be proven, but rather that the document qualifies only as prima facie evidence, and the arithmetic of its value is left to the appraisal of the judge. In fact, a judge may admit under the same conditions any written document “emanating from the party against which claims are made and which makes plausible the alleged fact” along with any testimony that may further support it. The judge may also consider the record of the sworn testimonies of the parties as such written prima facie evidence. As well, in cases where parties are unable to produce a written document due to theft, war, natural destruction, loss, or social norms (e.g., a debt between husband and wife), proof may obtain by any means, including testimony. By requiring adherence to basic rules of form, and by specifying the arithmetic of their evidential value, the Civil Code ensures contracting parties a certain amount of predictability and a more level playing field in litigation. Yet judges have remained pragmatically aware of the many limitations of written proof instruments; their susceptibility to tampering, loss, and accidental destruction; or even their absence between parties who expected to be primarily bound by their bona fides. The courts have consequently protected the ability of judges to rule based on their inner conviction , and it is indeed one of the sovereign powers of French judges to evaluate the relative strength of all evidence presented to them—an evaluation protected from challenge on appeal. To Reform or Not to Reform In the 1970s, new communication technologies (telephone, telex, fax) and new methods of reproducing and archiving documents (photocopiers, microfilms, microforms) simultaneously extended and challenged the primacy of paper as contractual instrument. In particular, Computer Output Microfilm (COM) found widespread use in France as a cost-effective way for the storage and retrieval of the “paperwork explosion” experienced by the military, scientific, financial, and insurance fields.17 Yet the formal requirements of written proof posed significant hurdles to their adoption in the business world: on the one hand, the obligation to preconstitute proof for all transactions over 50FF imposed a heavy administrative burden on transactions of small value; on the other hand, the requirement to 100 Chapter 5 keep originals meant that the advantages of microfilming could not be leveraged to bring about reductions in storage costs of records. In 1980, the French Senate proposed to address both issues through a limited reform of evidential rules.18 The first restriction was easily addressed: the reform raised the ceiling so that transactions under 5000FF could be proved by any means. Determining the evidential status of copies proved more complex however, requiring a subtle balancing act between the formal rules of preconstituted proof and the judge’s sovereign powers over the evaluation of the evidence presented to him. It also required confronting the problem of technological mediation: between the document originally witnessed by the parties and the one presented in court, a series of highly technical processes—electronic, optical, chemical—had intervened. How could the courts gauge their reliability or susceptibility to fraud? Who was best equipped to provide this expertise? The initial proposal from the Senate suggested copies be granted an evidential value equivalent to the original, as long as it could be demonstrated that the copy be a faithful and durable one. Given the burden of such a demonstration, however, it proposed that a copy would be presumed faithful if it provided a reproduction “of the integral content and of the exact form of the original title,” and presumed durable if it was “established on a media of a quality offering every guarantee of conservation.”19 The mechanism of evidentiary presumptions allows a court to assume a plausible fact is true until rebutted by some contrary evidence. A classic legal presumption is that the child born of a husband and wife living together is considered the natural child of the husband, and parties alleging the contrary bear the burden of providing a paternity test. In decreeing what the law considers common sense, presumptions thus affect a shift in the burden of proof.20 The Senate proposal would thus have two main consequences: on the one hand, instead of having to demonstrate the faithfulness of the copies themselves, parties would merely have to use a technology that meets the criteria of the presumption; on the other hand, the...