Digital evidence – do not confuse digital archiving with backups

Monitor Prawa Pracy, 2024

Digital evidence has been a topic of constant debate in Brazilian doctrine and jurisprudence. The topic, despite being new, has enormous relevance for the study of evidence in the Brazilian legal system. For this reason, this article seeks to carry out an analysis of the theory of digital evidence and answer the question regarding its legal nature: does digital evidence constitute a new method or is it classified as an atypical means of producing evidence? Focusing on the labor field, the research seeks to conceptualize the three traditional types of evidence (documentary, testimonial and expert), define what digital evidence consists of and establish what its legal nature is. To this end, the article uses a qualitative methodology, with a deductive nature, in order to confirm the hypothesis that digital evidence is classified as an atypical form of evidentiary instruction.

Law, Governance and Technology Series, 2018

Beyond the different and varied rules that each Member State adopts regarding the admissibility and development of evidence, including digital evidence, elements that in any case must be guaranteed are its relevance and its authenticity with respect to the case being examined. However, these requirements are far from easy to achieve, taking into account some peculiar characteristics of digital evidence, for example, its fragility (easily alterable, damageable and destructible) and its immateriality, namely, the difficulty in associating particular evidence to a physical object: Often it is confused with the device that contains it and therefore closely linked to the concepts of changeability and volatility. This means that the lifecycle of digital evidence must always be accompanied by documentation, always kept up to date, constituting the so-called chain of custody, i.e., the document that describes in detail what happens to digital evidence from the moment in which it was identified as evidence until its presentation before the judge in the trial phase, more specifically, the person who took possession of it to preserve its authenticity, when, where and how, and in what manner. The issue of digital evidence is necessarily interdisciplinary in that it affects different areas: the law in its national, European and international forms, digital forensics, computer science, sociology of law and diplomatics. The latter discipline, perhaps the least known among those mentioned, is focused on "studying the forms that official, legally probative or even constitutive documentation has taken over time".

The use of credible and admissible evidence, oral or documentary, in proof of a fact in question in any judicial proceeding, is a sine quo non to the success of a case. In the case of documentary e vidence, whether private or public, the law requires that same is preferably proved by producing the primary evidence and, in its absence, secondary evidence of varying kinds. With respect to a public document, the means of proving same is, nonetheless, un changed save however, that its exclusive secondary means of proof is by producing a certified true copy thereof. This paper attempts to examine the concept of public documents as a means of proving facts in evidence, its underlining principles and other prevailing trends, including misconceptions, amidst legal authors, practitioners and judicial officers.

SUBMITTED BY:-Ronak Karanpuria LL.M. (Business Law) Student ID No.: 534 2 Acknowledgement I express my deep sense of obligation and gratitude to Prof. S.B.N.Prakash, National Law School of India University, Bangalore, for his invaluable guidance and persistent encouragement in the preparation of this project work.

Digital Evidence and Electronic Signature Law Review, 2014

The Latvian legal system provides for a wide classification of evidence, such as direct and indirect; primary and secondary; real and personal evidence. 2 According to section 92 of the Civil Procedure Law, 3 evidence is information on the basis of which a court determines the existence or non-existence of such facts that are significant in adjudicating the matter. Section 127 of the Criminal Procedure Law 4 stipulates that evidence in criminal proceedings is any information acquired in accordance with the procedure provided for in the law, and fixed in a specific procedural form, regarding facts that persons involved in the criminal proceedings use, in the framework of their competence, in order to justify the existence or non-existence of conditions included in an object of evidence. In turn, section 149 of the Administrative Procedure Law 5 provides that evidence in an administrative matter is information regarding facts upon which the claims and objections of participants in the administrative proceeding are based, and information regarding other facts that are significant in the adjudicating of the matter. As far as electronic evidence is concerned, only the Criminal Procedure Law clearly distinguishes between electronic evidence and other means of evidence, providing in section 136 that evidence in criminal proceedings may be information regarding facts in the form of electronic information that has been processed, stored or broadcasted with automated data-processing devices or systems. In the Civil Procedure Law and the Administrative Procedure Law, the concept of electronic evidence has been included in a general definition of documentary evidence in writing, provided that the documentary evidence is information regarding facts relevant to the matter, and that the information is recorded by letters, figures or other written symbols or the use of technical means in documents, in other written or printed matter, or in other relevant recording media, such as audio, video tapes, floppy disks, compact discs, digital video discs and such like (section 110 of the Civil Procedure Law; section 167 of the Administrative Procedure Law). This means that any information that is significant to the proceedings and which is stored in electronic form, irrespective of the electronic data carrier, may be used as documentary evidence. Moreover, the laws do not indicate that it is necessary to transform such information from the digital form to any other form, such as a print-out, although in practice, most evidence in digital format is printed out. As pointed out by professor Torgāns, when assessing the information which is recorded in some types of information carrier, the court should evaluate the authenticity of such information and, amongst other things, consider the time and circumstances of the creation of the information and the object carrying it; the mode of recording the information; whether the information recorded is precise and what its relation is to the facts that need to be confirmed by that information; the

1999

Law, Governance and Technology Series

Electronic evidence is an important area of innovation, and inasmuch is characterized by strong and profound social dynamics. These dynamics can generate both opportunities and risks (if not managed or poorly managed), in terms of the functioning of the institutions of justice, the proper administration of justice for citizens and their rights, the representation of justice in public opinion, and so on. The aim of this paper is to present a panorama of some initial theoretical and empirical insights on this issue, from a sociological point of view. Our research tried to identify the types of actors that play a role in electronic evidence and its presence in judicial systems, as well as the obstacles and facilitating factors for the introduction of electronic evidence in courts. 14.1 Electronic Evidence as Innovation The introduction of electronic evidence in courts can effectively be considered a major innovation 1 in the sphere of justice. In fact, as the justice system becomes increasingly digitized, many see the use of electronic evidence as a means of simplification, facilitation, acceleration, and rationalization, depending on the circumstances, compared to the use of paper-based texts, providing a better service to citizens.

International Journal of Electronic Security and Digital Forensics, 2017

This article's objective is to screen and analyse the common models of digital preservation that exist, the elements, the degree of compliance with the general guidelines, the use of techniques and compliance with specific requirements as well as to evaluate the need for a solution to the environment of criminal investigation institutions, in the scenario that lacks a specific model. The importance of the preservation of digital objects is currently heavily analysed. Several aspects may serve to make the digital objects worthless, such as the uselessness of hardware, the deficiency of ancient computing formats to support their use, human errors and malicious software. The majority of crimes currently have a digital component, such that governments and the police are obliged by law to indefinitely hold digital evidence for a case's history. Until the presentation of the digital evidence in court, the evidence must be collected, preserved and properly distributed. The systems currently used often involve multiple steps that do not meet the demands of the growing digital world. The volume of digital evidence continues to grow, and these steps will soon become operationally and economically unfeasible for agencies responsible for performing these tasks.

Cuestiones políticas, 2022

Esta publicación científica en formato digital es continuidad de la revista impresa