Cryptography Reference
In-Depth Information
the rules relative to questioned document examination, the procedure that
kicks in place when litigating parties deny authorship or signature of a
document presented to them. In the case of electronically signed docu-
ments, the updated rules now state that the judge begins the procedure by
ascertaining whether the signed document meets the conditions required
for the presumption of trustworthiness. However, “when an electronic
signature is presumed trustworthy, it is the prerogative of the judge to
determine whether the elements under his consideration are sufficient to
rebut this presumption.” By simply refusing to acknowledge an electronic
document, parties could automatically call the judge's inner conviction to
the rescue. In the end, even when confronted with technologies claimed
to possess extraordinary powers of conviction, judges continued to enjoy
significant latitude in considering the evidence presented to them.
Conclusion
The process of carving out a place for electronic documents in French
evidence law thus repeatedly stumbled on a tension: should the appraisal
of their evidentiary qualities belong to the realm of the (Cartesian) arith-
metic of preconstituted proof, or to that of the (subjective) inner convic-
tion of the judge? Behind this question looms a larger one: can there be a
technology whose material characteristics and whose evidentiary qualities
are so exceptional that it may be said to utterly compel the conviction of
the parties and judge, indeed, to be “non-repudiable”?
An historical look at the organization of paper-based written proof and
the evaluation of its forensic qualities by French courts suggests that in
fact, these never relinquished their power to rule to the formal qualities of
evidence. In his overview of the development of handwriting analysis in
the French system, Ken Alder points to a curious fact: a legal system
founded on the primacy of written evidence relied on and accommodated
a dubious forensic science of handwriting analysis. Indeed, common-law
legal scholars have often marveled at the exceptional career of handwriting
expertise in France, when its vague scientific basis and demonstrated unre-
liability have afforded it a much more limited purview in other legal
systems. Alder suggests that the choice was primarily pragmatic in that
“there was often no other way to superintend script culture.” That is,
“insofar as the French state sought to earn its legitimacy by acting as the
