Importance of Digital Evidence...

The innovation of computers and digitalization is one of the greatest achievements of mankind.

In the age of the digitalized world, governments of many countries have adopted digitalization in their administration.

Recently, the Indian government has started the ‘Digital India’ campaign to promote the use of digitalization in our daily life too, which would certainly help to speed up the development of our country. 

Here we will discuss about the importance of digital evidence and the role it plays in criminal investigation.

Execution of Law

Judgement at trial in some ways represents the close of the law enforcement process that began with the violation of the law and ends with the execution of the law.

Judges, juries, and defence attorneys clearly have a stake in digital evidence processing.

Objections to digital evidence are rarely sustained, provided that the evidence meets the Daubert standard.

Juries often find the presentation of digital evidence compelling.

Yet, variation remains in the familiarity with digital evidence across different areas of the criminal justice system (e.g Lack of knowledge about digital evidence on the part of judges can complicate appropriate use in court) or echelons of command within law enforcement (e.g senior leadership may not immediately recognize the benefit of digital evidence capabilities).  

However, the consensus is easier to find when successful processing of digital evidence directly results in more cases solved and more successful prosecutions on the basis of that evidence.

A current trend is an increasing number of positive outcomes and positive feedback that results from showcasing these efforts.  

Role of Law Enforcement

The role of law enforcement does not end with an arrest or clearance.

Police must give evidence to prosecutors and effectively communicate both the significance of and process to obtain digital evidence to all parties, including a jury.  

There are significant challenges in the investigative process, including the handing off of the evidence to the prosecution that must be addressed to successful use of digital evidence in prosecutions.

This can range from inexperience of patrol officers and detectives in preserving and collecting digital evidence, to lack of familiarity of court officials with the nature of digital evidence.

Typically issues with evidence in general and with digital evidence, in particular, include hearsay, admissibility and obligation to the defence.  

Evidence can be in the form of as DVD, CD, Hard-Drive, chip, Memory Chip, Pen Drive.

The above electronic records are admissible as primary as well as secondary evidence.

The value of evidence depends on how and in what manner the electronic records have been submitted to the court.

If this digital evidence is submitted as it is then those have more value without any doubt but if you want to submit their copied version to another similar or different device then you have to comply with the conditions precedent under section 65b of the Indian Evidence Act and get the certificate for its admission in the court. 

Obligations to Disclose Evidence to The Defence

Discovery rules obligate the prosecution to provide evidence to the defence on a continuing basis. In addition, defence attorneys may seek to compel access to the evidence for a defence examiner to analyze:

1. Provide duplicate digital evidence to the defence or accommodate its examination.  

2. Know the public document retention periods. (Be aware that state or Federal freedom of information statutes may be used as an alternative process to obtain information).  

3. Identify all the examiners who worked on and found the evidence. 

Admissibility of Digital Evidence in Court

In this phase, courts determine whether the appropriate legal authorization was used to search and seize information and communication technology and related data. The types of legal authorization include a search warrant, court order, or subpoena.  

The Rise of Digital Evidence Used in Court

In 2008, with much trepidation, I entered into my first criminal defence case as a computer forensics expert.

The case centred on a 14-year-old juvenile arrested on 21 counts of a 3rd-degree felony for possession and distribution of child pornography.

My knee-jerk reaction was that this is absurd. D

uring this time period, “sexting” was new and being investigated by law enforcement, and the news outlets were reporting on ‘sexting’ incidents by school-aged children texting illicit photos of themselves and others.  

In this case above: 

• Law enforcement monitored the internet looking for computers sharing out content as part of a peer-to-peer network.  

• Upon locating a PC sharing content, a search for illicit material commences.  

• If illicit material is confirmed, a subpoena is sent to the service provider of the identified IP address, requesting the subscriber name and physical address of the computer.  

• Local law enforcement seizes all electronic devices found in the address.  

• Law enforcement then conducts a forensics analysis looking for evidence.  

• A forensics detective provides evidence to the attorney prosecuting the case.  

• The device is then stored, the criminal complaint filed, and the defendant arrested.  

 In criminal defence cases, many defendants do not have the means to hire a forensic expert.

The government will introduce electronic evidence without a defence challenge to the preservation, authenticity, chain-of-custody of devices, and the “how” that electronic data provides.

Often, this evidence introduced is misleading or flat-out incorrect. 

Leading Case Law 

 Arjun Pandit Rao V. Kailash Kushanrao (july 2020)  

Apex court, in a recent judgement, ruled that u/s 65B Indian Evidence Act’s compliance is essential to admit the electronic record as evidence.

The certificate submitted under this provision constitutes particulars of that electronic records and identity inclusive of the authorized signature of a person having official responsibility in relation to the management and operation of the relevant device.  

Conclusion

The court could also determine whether digital evidence was tampered with before, during, or after collection, as well as the reliability of the mechanism that produced it.

Virtual investigators may be called to the stand to testify about the authenticity of the original evidence, as we all as the complication and processing mechanism procedures, as well as to claim that they developed the chain of custody and forensically maintained the records. Proof may be excluded where there is an unexpected breach in the chain of custody.