I spent four hours waiting in a rural courthouse today, watching cases that gave me a lot of food for thought about using blockchain data in administration of civil justice. One question is how to treat blockchain data as evidence. In the U.S. judicial system the standard for admissibility of evidence turns on whether a human has sworn under penalty of perjury that the information is true.
Documentary evidence is usually not admitted as a stand-alone thing. It’s hearsay, “an out of court statement offered to prove the truth of the matter asserted.” For example, to submit evidence from government or other familiar online sources, I might print a copy of the web page showing the URL and attach an affidavit swearing this is what I relied on in order to make a good faith factual filing. In a higher stakes case, litigating the validity and admissibility of internet-based evidence consumes a lot of energy and fees.
For business records, an employee “verifies” (swears) that the documents are made and kept in the usual course of business and that the information in the document he or she emailed, downloaded or printed is true, to the best of the employee’s knowledge. A notable abusive outcome of this practice is the “robo-signer” swearing to fraudulent affidavits in high-volume consumer lawsuits.
What will be the effect of blockchain technology on evidentiary rules in court? Will blockchain data be simply another page of internet-based evidence that lawyers wrangle about or will we articulate the technology well enough, both functionally and legally, that it can create a more efficient documentary evidence standard?