Digital Evidence or Electronic Evidence is processed information that stored or transmitted in digital form that a party can use this in court case at a time of trial. Today, virtually every crime has an electronic component in terms of computer and electronic technology bring used to facilitate the crime. Computer used in crimes may contain a host of evidence related to crime, whether it is conventional crime or terrorist act. The influence of electronic media has been spread over all branches of society including law and the judiciary.
Maintaining the integrity of electronic evidence throughout the process of investigation and trial present different problems from the handling of traditional physical or documentary evidence. Electronic Evidence or documents are easy to manipulate: they can be copied, altened, updated, deleted or intercepted.
Definition of digital evidence includes ‘information of probative value stored or transmitted in binary form; and Information stored or transmitted in binary form that may be relied on in court. Be accepting digital evidence a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether a copy is acceptable or the original is required.
Evidence Part of the law series:-
Types of evidence: Testimony, Documentary, Real (physical), Digital, Exculpatory, Inculpatory, Demonstrative, Eyewitness, identification Genetic (DNA), Lies.
Relevance: Burden of proof, laying a foundation, Materiality, Public policy exclusions, Spoliation, Character, Habit, Similar fact.
Authentication: Chain of custody, Judicial notice, Best evidence rule, Self-authenticating document, Ancient document, Hague Evidence Convention.
Witnesses: Competence, Privilege, Direct examination, Cross-examination, Redirect, Impeachment, Recorded recollection, Expert witness, Dead Man’s Statute.
Hearsay and exceptions: in English law, in United States law, Confessions, Business records, excited utterance, Dying declaration, Party admission, Ancient document, Declaration against interest, Present sense impression, Res gestae, learned treatise, implied assertion.
Other common law areas: Contract, Tort, Property, Wills, trusts and estates, Criminal law
The use of digital evidence has increased in the past few decades as courts have allowed the use of emails, digital photographs, ATM transaction log, word processing documents, instant messages histories, files save from accounting programme, spreadsheet, internet browser histories, database, the contents of computer memory, computer backups, computer printout, logs from hotel’s electronic door locks, and digital audio and video files.
Digital evidence is often ruled inadmissible by courts because it was obtained without authorization. In most jurisdictions a warrant is required to seize and investigate digital devices. In a digital investigation this can present problems where, for example, evidence of other crimes is identified while investigating another. During a 1999 investigation into online harassment by Keith Schroeder investigators found pornographic images of children on his computer. A second warrant had to be obtained before the evidence could be used to charge Schroeder.
Electronic evidence : data (comprising the output of analogue devices or data in digital format) that is manipulated, stored or communicated by any man-made device, computer or computer system or transmitted over a communication system, that has the potential to make the factual account of either party more probable or less probable than it would be without the evidence.
Challenges with Electronic Evidence:-
Electronic evidence, by its very nature is invisible to the eye, must be developed using tools other than the human eye.
- Each step requires the use of tools or knowledge, the process must be documented, reliable and repeatable.
- The process itself must be understandable to the court.
- Each progression requires the utilization of instruments or information, the procedure must be archived, solid and repeatable.
- The procedure itself must be reasonable to the court.
- Procurement of proof is both a lawful and specialized issue.
- The law determines what can be seized, under what conditions, from whom, and from where it might be seized. The assurance of what a specific bit of advanced proof is requires its assessment.
Provision for the proof of Electronic Evidence:-
- 65 A. Special provisions as to evidence relating to electronic record
- Admissibility of electronic records
- 67 A. Proof as to digital signature
- 73 A. Proof as to verification of digital signature
- Presumption as to Gazettes in electronic forms
- 85 A. Presumption as to electronic agreements
- 85 B. Presumption as to electronic records and digital signatures
- 85 C. Presumption as to Digital Signature Certificates
- 88 A. Presumption as to electronic messages
- 90 A. Presumption as to electronic records five years old
- Production of documents or electronic records which another person, having possession, could refuse to produce 10 August 2017 Electronic Evidence: Collection, Preservation
By Archit Sharma