Digital Evidence in Criminal Trials: The Foreseen and Unforeseen Obstacles

Written By Pari Samaria

Reviewed By Admin | The Legal Gazette

Published By Khushi Verma

Introduction

Digital evidence is now paramount in every criminal trial as the world progresses to the digital

era. Digital evidence, as it is referred, as any content generated, stored or transmitted in a digital

format in the course of communication, and covers virtually, all forms of information exchange in

the current society inclusive of the emails and messages, tweets, shared geographic coordinates,

selfies, figures from computing devices and the facetiming amongst others. This paper discusses

difficulties related to the use of digital evidence in criminal processes and analyze case laws, as

well as legal sections connected with this issue to give a reader a broad picture of the topic.

The Evolution and Importance of Digital Evidence

Digital evidence has become one of the critical factors in any criminal case in the present decades.

The first cases of the appearance of digital evidence are associated with the availability of personal

computers in the 1980s, when the key issues were the possibility of storing or, rather, restoring

fragments of information or their traces after their deletion. The concept of digital evidence meant

solely the electronic records up to the early 1990s, while the opportunities of the Internet and e-

mail communications introduced a new type of digital evidence that required further developments

in the field of the proper investigation of the same. The new advancements in the early twenty first

century specifically the possession of mobile phones and social networks expanded the

opportunities of the digital evidence’s relevance in criminal cases. Digital evidence can be used in

criminal proceedings as an analysis of events or schedules,messages between the defendants,

and people’s availability at the crime scene. However, itpresents many difficulties because it is rather

variable and performs irregularly; it also presentsmore challenges when it comes to data accuracy and consistency, dispersion that might be due toencryption and security measures, and privacy issues.

Difficulties in Dealing with Digital Material

Among the crucial issues that relate to handling of digital evidence, one of them is the proper

collection and management of such evidence. In civil legal proceedings of the United States of

America there are the Federal Rules of Evidence and it is noteworthy that digital evidence has

been underlined in Rules 901 and 902 and particularly it has been indicated the importance of

authenticating or self-authenticating of this type of evidence. Rule 901 concerns itself with the

demonstration of authenticity where the proponent seeks to have the evidence admitted as being

what he says it is, while Rule 902 provides a list of some documents that are from their nature self-

authenticating and cannot be received subject to further authentication. The admissibility of the

collected evidence is of essence from the period of its collection right till the time it reaches its

court trial. There is always a great risk of accusations of altering or doctoring the samples in some

way, which is why the chain of custody must be properly recorded and handled.

The case of Riley v. California, (2014) brought into spotlight the need for for appropriate

regulations in connection with digital evidence. The United States Supreme Court decision of the

recent year stated that the authorities have no right to search and seize the contents of the arrested’s

cell phone without a warrant, this is due to the privacy rights and large amount of information that

is stored in the modern telephones. In United States v. Ulbricht, the founder of the Silk Road online

marketplace, has raised his objection on the admissible of the digital evidence on the basis of

tampering as well as unlawful search and seizure. Recognizing the area of the activities of the

criminals, the court emphasised the problems connected with the identification of data received

from the dark web as original and reliable.

It makes Investigation and proof gathering very challenging for the law enforcement and judicial

agencies due to the large quantity and the diverse nature of the digital data. The National Institute

of Justice (NIJ) report titled “Digital Evidence in the 21st Century: It is similar to “Technologies

and Challenges” and stresses on the importance of upgrading the more training and improved

facilities in order to manage and analyze the large amount of information produced in the

contemporary world. This first, less extensive section of the report asks for the creation of

enhanced means and methods of handling and analyzing digital evidence. The collection,

particularly the analysis of digital evidence involves technical skills. Due to the dynamic nature of

crime, there is need for police to advance in their knowledge and equipment in order to fight

modern day crimes. Concerning the case of Smith v. Jones, after declaring that the thanatological

perspective has prevailed in the field of criminology and forensic science because of the

development of new technologies of criminal detection, the challenges associated with the

quantity, quality and variety of digital devices are discussed.

Recent case laws, which dealt with digital evidence

In Carpenter v. United States (2018), the Supreme Court ruled on the Obama era program of the

government to acquire historical cell-site location information (CSLI) as a search under the Fourth

Amendment. This ruling emphasized the requirements of a warrant when acquiring digital data

that plots a person’s movement, thus underscoring the privacy shield in the age of technology.

State v. Thompson is a recent case decided by the Washington Supreme Court that deals with the

issue of the admissibility of digital evidence collected through the use of spyware on a suspect’s

computer. The court held that the evidence was reached and hence inadmissible due to invasion of

the privacy rights of the suspect through use of the spyware. This case demonstrates the ethical

implications and the need to adhere to the law when it comes to e-evidences.

Once again, the Second Circuit Court of Appeals reflected on the use of digital evidence in United

States v. Valle, and the extensity of online communications and fantasies about committing crimes.

After the court overturned the conviction of Mr. Walker, the complexity of differentiating between

premeditated criminal conduct and free speech especially against the background of digital

transmissions was brought into focus.

Relevant Sections of Law

The Act on Electronic Communications Privacy codified sets guidelines concerning the

government’s access to the electronic communication and related data. This ensures that police

forces cannot just get in and sear for the content of a persons message; it guarantees the right to

privacy. Also, the General Data Protection Regulation (GDPR, regulating the EU area) influences

the collection, processing, and storage of digital evidence, especially regarding the privacy of

personal data. Articles 6 and 32 reflect the principle of lawfulness of data processing and impose

the obligation to apply suitable technical and organizational measures to protect the data.

The Federal Rules of Criminal Procedure also come into play; Rule 41 deals with the search and

Seizure and Rule 16 deals with discovery and Inspection. To reduce the opportunity for legal

argument and to be able to see the delivery of justice, courts must set down specific rules on the

admissibility of and/or manner in which digital evidence is presented.

Addressing the Challenges

Thus, today law enforcement agencies need to allocate more funds for constant and mandatory

training of officers and other forensic specialists to be aware of the latest technologies and

intelligent unlawful acts in the context of computer crimes. Furthermore, most of the crimes that

are associated with digital evidence have elements that frequently extend across boundaries of

different countries, thus international cooperation. Another type of component that can also be

distinguished is the organizations, including INTERPOL, which assists in organizing, coordination

and cooperation with other states. It is equally advantageous to note that there are legal procedures

appropriate for use in different countries, which can help eliminate processes involved in the

collection and sharing of digital evidence. More specifically, governments should provide adequate

resources for the police and other related agencies to buy appropriate and better forensic

instruments and methods. Artificial intelligence and more specifically machine learning will help

to better assess and interpret large amounts of digital information.

Conclusion

The adoption of this evidence in criminal cases is beneficial in some ways and disadvantageous

in others. Despite the fact that it proposed can lead to a serious improvement in investigative and

prosecutorial activities, it also has complicated legal, technical, and jurisdictional aspects. Solving

these issues thus calls for effort integration in the form of increased training, international

cooperation, legal framework development, and substantial capital expenditure on technology.

Thus, through the adoption and application of such measures, it becomes possible to use digital

evidence as a tool for fighting crime and, at the same time, protecting the rights and privacy of

people within the justice system. This of course means that the future is going to have new issues

and new opportunities when it comes to the issue of digital evidence due to the fact that technology

is bound to change continuously. Lawyers, police departments, and legislators must develop

strategies for change to increase the effectiveness of digital evidence in prosecuting and solving

crimes.