Civil vs "Common Law" – the assessment of »rules« of evidence law (testing the admissibility of electronic evidence in common law and continental law systems)

The further for deepening of economic and other cooperation depends also upon the legal and institutional framework, which enables the possible dispute resolution and mutual recognition and enforcement of judgments in both Republic of Slovenia and the US. Judicial cooperation of Republic of Slovenia’s courts with the courts of other Member States is regulated by several legal acts, which give ground to a high level of mutual trust among the courts of individual Member States of EU, and consequently makes possible an intensive cooperation in the field of taking evidence and enforcement of judgments. All this together creates a beneficial climate for further deepened economic and other cooperation. On the other hand it is possible to ascertain that the mutual cooperation of courts in the Republic of Slovenia and the US stays on much lower level.

The researchers in the bilateral project start from the hypothesis that the consciousness of a judge about methods of taking and using of evidence in the courts of other states is crucial for establishing the mutual trust. Such mutual trust, however, serves as a ground for uncomplicated and swift mutual recognition and enforcement of judgments, which creates a beneficial climate for deepened economic and other cooperation. The basic questions of taking evidence and their use in civil judicial proceedings that could be crucial for the development of mutual trust are above all the question of types of applicable evidence, possible exclusions and limitations of evidence, protection of Human Rights in taking evidence, existence of possible legal (especially incontestable) presumptions and fictions, as well as existence of possible time limitations for submission of evidence with preclusive effects.

Mutual trust of courts in Republic of Slovenia and the US has to be based on shared conviction that the judgments are delivered with full recognition of comparable legal values and that the parties in the procedure share the same rights related to evidence. In this context is especially important the question of Human Rights protection in a process of taking evidence and possible exclusions and limitations of evidence that can be hereto related. The United States belongs to the common law legal system, which, in terms of proof, have specific rules that differ substantially from the continental ones. So, for example, in comparison with the United States, continental systems, including Slovenia, do not know the duty to submit incriminating evidence or specific rules on preservation of evidence in pre-trial phase. The difference also lies in the fact that in the continental system the evidence is shown fort the first time at the main hearing before the court and there is no general pre-trial phase of gathering evidence (although the first common law markings have already been shown by a introduction of pretrial expert).

The growth and globalization of digital communications environments (social networks, e-mails) have not only led to a revolution in terms of human relationships, but also in the legal environment, in the field of information technology and law. Due to the daily use of electronic devices, the number of new electronic evidence is increasing (e-mail, e-documents, social networks, cloud services, videoconferencing, audiovisuals, digital photography, etc.). Judges the ones who decide by their discretion of which evidence will be allowed and which ones will not, but the judge will be confronted with the assessment of the scientific and technical aspects of individual evidence and will have to make a decision on the authenticity of such electronic evidence. For this reason, it is important to understand the differences between traditional and electronic evidence.

In the US, in the field of use and regulation of electronic evidence in court proceedings is more advanced, compared to the situation in the EU Member States, in particular in Slovenia, as the procedure of electronic evidence is specially regulated by the Federal Rules of Civil Procedure and the rules has been specially regulated and in the on the admissibility of electronic evidence are regulated in Federal Rules of Evidence. The Slovenian Civil Procedure Act regulates electronic commerce, but does not contain specific rules on e-evidence, which means that traditional evidence rules apply for e-evidence. A serious concern with respect to digital evidence is where those involved in justice systems fail to fully appreciate that evidence in digital format, now virtually ubiquitous in that it appears in almost every case in one form or another, is far more complex than those taking part in the proceedings might be aware.

The Slovenian Research Group has carried out a European project "The Dimension of Evidence in a European Civil Procedure", which analyzed the regulations of the rules of evidential law in 26 EU Member States ( ). The scientific knowledge gained by the researchers with the European project will enable, through a comparative legal analysis of the US system, to identify the most important points of discord between the continental and common law system of evidential law. Another important result will be the development of a common understanding of the concept of electronic evidence and the relevance and types of electronic evidence; assessment of the relevance of the basic principles in the use of electronic evidence, the  importance of experts in assessing authenticity, the credibility of electronic evidence, the protection of evidence. Doctoral students who are researching evidential law are involved in the research group.