What laws currently govern autopsies?

Statutes and regulations relating to death investigation differ depending on the geographical regions of the world. Under the colonial regime, sudden and unnatural deaths were reported for investigation. Coroners were then permitted to conduct an inquiry and investigate the deaths (Koehler 2016). Initially, little or no medical training was required. It then became clear that individuals required training to perform autopsies (Kalougivaki 2014; Koehler 2016; Mao et al. 2020). A potential error during an autopsy examination will be detrimental to an investigation. Persons may be prosecuted with possible false evidence or evidence may be lost resulting in miscarriage of justice (Koehler 2016).

In South Africa, the Inquest Act 59 of 1958 directs the procedures and investigations regarding the inquiry of deaths due to unnatural or unknown causes. Inquests regulate the procedure for medicolegal post mortems into suspicious deaths (Inquests Act 1959). The Regulations of the National Health Act states that only an authorised person (i.e. a qualified forensic pathologist or a medical officer with autopsy training) may conduct a death investigation and medicolegal autopsy (Regulations regarding the rendering of Forensic Pathology Service 2003). The investigation may also include attending the crime scene where the pathologists’ may be consulted to provide their expertise on circumstances surrounding the death.

There is an urgent need to rapidly upgrade the current paper record keeping system, which results in missing or empty files, into an electronic system. It should be obligatory to stay abreast with technological development when other medical disciplines have far advanced into this territory, even in resource limited countries (Wilson and Khansa 2018; Grange et al. 2020; Katurura and Cilliers 2018; Lucas et al. 2019; De Pietro and Francetic 2018; Zayyad and Toycan 2018). Nevertheless, there is a multitude of reasons why this forms a conundrum in forensic medicine just as it does in medicine (Ambinder 2005; Kalougivaki 2014). While patient confidentiality is the most cited reason for not fully embracing an electronic system in Medicine, the system would also need to conform to legislation governing unnatural deaths in forensic medicine (Wilson and Khansa 2018; Medicine Io 1997; Lucas et al. 2019; De Pietro and Francetic 2018). All information collected during an inquest is viewed as being under the authority of the court and magistrate. It is therefore treated with the utmost confidentiality and security. These issues render it necessary to debate how forensic medicine can incorporate an electronic record keeping system that would also be permissible for use in court.

Obtaining evidence for an inquest or death investigation

The foundation regarding admission of evidence in court is based on the principle that all information that is presented to court, its contents must be proven to be true and incorrigible (Tonder 2013). The Criminal Procedure Act `(CPA) Section 210 conditions that [quotation] “Irrelevant evidence inadmissible … ..” (Criminal Procedure Act 1977). The evidence that is admitted in court must follow the correct legal procedures and therefore must be obtained lawfully, in keeping with section 35(5) of the Constitution of South Africa. Evidence that is procured in lieu of a person’s rights as stated by the Bill of Rights should not be presented in court. This evidence will lead to the obstruction or prevention of justice. All conventional evidence must also follow the common law rules as set by precedents. The evidence must conform to the legal rules, and therefore it must be true, authentic, relevant to the matter at hand and as complete as possible.

All evidence obtained during an inquest is subject to the CPA Section 212. “Proof of certain facts by affidavit or … … ensure proper custodianship of all documents pertaining to the investigations.” (Badiye 2020). Thus when evidence is admitted into a court of law, the statement must be in the form of a sworn affidavit which includes the name and qualifications of the person making the statement. Proof and maintenance of the custodianship of the evidence is important to prevent claims of evidence tampering, as well as alteration or contamination. Detailed records of each person who handles or controls the evidence, including the dates and times of when s/he received it, are recorded to prevent mishandling of the evidence. The records should also include the person/department to whom the evidence was transferred to. This prevailing chain of evidence must not be broken and there should consequently be no gaps during which evidence was unaccounted for or out of the control of a custodian.

Definitions and use of electronic evidence in court

Current technology has changed how we communicate and share information in our personal and business-related interactions. A provision for admissibility issues relating to computer printouts was made in the Civil Proceedings Evidence Act (CPEA) 25 of 1965 (Watney 2009). The CPEA provided that an authenticated computer printout was admissible as evidence of any fact recorded in it. It would be “authenticated” when accompanied by an affidavit and any other additional affidavits that may serve to support the reliability of the printout. The CPEA was applicable to civil proceedings, and thereafter the Law Commission applied for the Act to be used across all criminal proceedings. The CPEA however did not receive widespread approval and was repealed following the enactment of the Electronic Communications and Transactions Act no. 25 of 2002.

The Electronic Communications and Transactions Act (ECTA) no. 25 of 2002 provided a foundation for the authoritative actions regarding the conduct of electronic communications and transactions (No. 25 of 2002: Electronic Communications and Transactions Act 2002). The ECTA was also meant to prevent the abuse of information systems while strengthening the support for the use of electronic communications transactions. It further emphasised the importance of integration of technology and electronic communication into businesses with further development for human resources (No. 25 of 2002: Electronic Communications and Transactions Act 2002).

Chapter 1 of the ECTA defines data as (direct quotation) “data” means electronic representations of information in any form;” and “data message” means data generated sent, received or stored by electronic means and includes-25 (a) voice, where the voice is used in an automated transaction; and (b) a stored record.” Additionally, the all-encompassing term of “Digital Evidence” refers to all data or information that is stored on or transmitted by a digital device (Kohn 2012).

When evidence is to be presented in Court, the ECTA states by “(1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message … original form.” The statement is related to evidence that is in the form of a data message and this evidence cannot be termed to be inadmissible for court due to its form. Thus, creating legal recognition for use of information in an electronic format.

Section 14 (1) of the ECTA provides for a data message to be viewed as an original document if the document can be proven to be true or it can be assessed. It must then also be in a format that it may be displayed in court or it can presented to the appropriate persons for assessment.

With reference to the integrity of the document, Section 14(2) (2) stipulates the computer system must show that the electronic file remained uncorrupted upon retrieval and can be assessed as a true original document. This is necessary since digital technology allows for easy changes to documents that have been scanned into a database. Inspection procedure should therefore explicitly be designed to prevent tampering and corruption of records (Watney 2009). And ultimately, also allow for the auditing of a computer since there are methods to retrieve data even once it is deleted (Ambinder 2005; Mosa et al. 2015).

Data as evidence

The ECTA has prepared the way to ensure the recognition of electronic data and allows for digital evidence to be treated in a similar manner to traditional paper-based evidence. The resultant application of the definitions and its interpretation in court has led to some confusion among practitioners necessitating a discussion of the Act.

Photographs are traditionally taken as documentary evidence defined in section 33 of the CPEA and are also applicable to criminal proceedings by section 222 of the CPA 51 of 1977 (Civil Proceedings Evidence 1965). Photographs and the device upon which it was stored are consequently considered as documentary evidence for use in court. The manner in which these photographs are obtained or stored is also not stated with clarity within the CPEA or CPA but the normal common law relating to hearsay and admissibility are applicable to them to the same extent as documentary and electronic hearsay. The dependability of an electronic printout thus depends upon the computer and are not excluded from hearsay rules (Lee 2018).

The use of electronic documentation can accordingly be regulated in forensic pathology if it is subjected to rules in line with current South African or International legislation. The use of mobile devices for documentation of evidence may be more challenging especially since cell phones are essentially “mini computers’ that may allow for storage and the amendment of documentation and communication. However, and in accordance to the CPA and CPEA, mobile phones can serve as documentary evidence or digital evidence since it can be assessed and audited (Tonder 2013; Criminal Procedure Act 1977; Watney 2009; Civil Proceedings Evidence 1965; Thompson 2013; Goodison et al. 2015; Eoghan Casey 2011).

The international laws relating to electronic records

The English law for evidence defines data produced in the absence of human intervention as “real evidence”. But data that is dependent on human for production, are subjected to hearsay rules (Lee 2018). Legal interpretations in countries such as South Africa and Canada use the English law of evidence. If the data are regarded as documentary in nature in South Africa, then several statutory exceptions, including those found in the Criminal Justice Act 2003 and the Civil Evidence Act 1995 are applied (Lee 2018).

In Canada, electronic evidence is subject to the same systematic procedure as traditional evidence. The legislation regulating electronic evidence are the Canada Evidence Act, 1985 and the Uniform Electronic Evidence Act, 1999. Canada differs from the Model Law, 1996 (and other jurisdictions) by using the term electronic record instead of data message, digital evidence or computer evidence.

While many legal aspects are interpreted similarly in the USA, the legislation does differ between different states. The USA adopts a business records hearsay exception, and distinguishes between computer-generated records (with no human intervention—real evidence), and computer-stored records (with human intervention or documentary hearsay) (Lee 2018). The admissibility of electronic evidence in the USA is similar to that in South Africa: evidence must be relevant, original and must be the best evidence available that was obtained in a lawful manner (Watney 2009).

In 2004, the Electronic Signature Law no.15/2004 (“E Signature Law”) was promulgated in Egypt to regulate the use of the electronic signature (Moustafa Amin SNSLF n.d.). The importance of legislature and regulations regarding electronic documentation in Court is discussed by Amin and Nasreldine (Moustafa Amin SNSLF n.d.). An important judgment, passed in March 2020 in the Egyptian Court of Cassation which relates to disputes involving electronic evidence. It was acknowledged that this can only occur on the ground of forgery as provided in the Egyptian Evidence Law no.25/1968 (Moustafa Amin SNSLF n.d.).

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