Rules of evidence are premised on the search for accurate, reliable, demonstrable truth. The Best Evidence Rule (which requires in most circumstances the production of the original document) is predicated on the assumption that the trier of fact might not be able to detect fraud or error in a copy of a document. Hearsay evidence (evidence not based on direct knowledge) begins with the assumption that the evidence cannot be trusted and therefore must be subject to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal [judge or jury] to estimate it at no more than its actual value” Wigmore on Evidence.
The Proof That Our Votes Were Actually Counted as Cast Cannot Be Established by the Evidence Produced by a DRE
If an election is run on a touch screen computer (DRE) there's absolutely no evidence that could withstand scrutiny in a court of law. The only proof of the vote count is the computerized tallies produced by a computer. Can't cross-examine the computer. Testimony from the last computer software programmer who may have had access to the machine isn't going to solve the problem because we can't really know who that might be. That is precisely the problem of voting on computers: they're only as good as the last person who had access to them and they are capable of being hacked without detection by malicious codes. Malicious codes are designed to leave no trace. So even if the computer programmer takes the stand, there is nothing he/she could say that could prove the machine(s) had not been rigged. There is no way to effectively scrutinize or analyze the computer's tally and no way to get at the truth.
Other computer scientists could testify about what they can determine after the fact, but there will never be anyone who can testify with certainty that a vote tabulation system is secure because there's no such thing as a tamper-proof system. No amount of testing can prove software is safe. The millions each state wastes on testing and certification is just that: a waste. See Bruce O'Dell's Pull the Plug on E-Voting http://www.opednews.com/articles/opedne_bruce_o__061025_pull_the_plug_on_e_v.htm,
Pull the Plug on E-Voting, Part 2, http://www.opednews.com/articles/opedne_bruce_o__061026_pull_the_plug_on_e_v.htm, Open Source Voting Considered Harmful, http://www.opednews.com/articles/opedne_bruce_o__061027__22open_source_voting_.htm.
And for those who have been misled to believe that adding a voter verified paper trail to the DRE is going to make a meaningful difference, it can't. Regardless of whether a DRE has a paper trail or not, a malicious code could be installed on the voting machine and "...that the code could easily be configured to "disappear" once its work was done, leaving no trace of tampering; the electronic and paper records produced by the voting machine would agree– and both be wrong". See Technology Review: How to Hack an Election in One Minute http://www.technologyreview.com/Infotech/17508/,
That leaves DRE evidence inadmissable. There's no one to cross examine, probe, ask – how were these votes counted? That's because the counting of the votes is concealed within the inside of a computer. There are some questions we could ask about how that computer was programmed, who tested or certified it last, but not only would that not give us enough information to pass muster in a court of law (see the O'dell articles above), the voting machine companies assert trade secret proprietary ownership rights over that information and won't reveal that evidence for further examination. Incredibly the proprietary rights of the corporation have already been upheld in some of our courts in this country.
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