Electronic evidence, sometimes known as digital evidence, is a term that refers to probative information which is either transmitted or stored in a digital format and which could then be used at a trial or court case. Before digital evidence is accepted by the court, it must be determined whether that evidence is authentic, relevant, hearsay or whether copies will be acceptable or whether the original must be produced.
Increasing Use Of Electronic Evidence
Over the last decade or so, there has been an increase in the amount of digital evidence which is used in court as digital photographs, emails, logs of ATM transactions, word processed documents, histories from instant messaging programmes, spreadsheets, browser histories, account programme files, databases, computer memory contents, computer backups, printouts, GPS tracking, audio files and digital videos have been used in trials for various purposes.
The Federal Rules of Evidence
Many US courts are now applying the Federal Rules of Evidence to evidence in an electronic format in a very similar way to the way it is applied to traditional paperwork, however differences in terms of established procedures and standards have been recognised. Digital evidence is also generally more voluminous and hard to destroy as well as being more easily duplicated or modified. This means that some courts are treating electronic evidence in a different way in terms of hearsay, best evidence and authentication rulings. To address these issues, the Federal Rules of Civil Procedure introduced new rules which required disclosure and preservation of all digitally stored evidence. Although electronic evidence is frequently attacked because of potential problems with its authenticity, courts are now starting to reject those arguments unless there is proof that the evidence has been tampered with.
Is Digital Evidence Admissable?
Courts sometimes rule that electronic evidence is inadmissible since it has been obtained without the authorisation of the person involved. In many jurisdictions, warrants are necessary to take and investigate any digital devices and this may present issues, especially in cases where evidence of another crime is identified while another crime is being investigated.
As with all types of evidence, electronic evidence’s proponent has to lay appropriate foundations. Courts have primarily been concerned about digital evidence’s reliability and while early decisions meant that authentication had to have an especially comprehensive foundation, these days this higher standard is no longer as relevant and computer data files are now starting to be treated like other records. Despite this, the “more comprehensive” rule stays as the best practice. There are lots of ways in which this foundation can be established. The proponent must demonstrate that the computer equipment used is reliable as well as the manner of entering the basic data. Measures must also have been taken to guarantee the data was accurate and the storage method of the data is such as to prevent the loss of the data. This has led to a number of software solutions being made specifically for the purpose of preserving digital evidence and authenticating it so it would be admissible in court.