Computer Search Versus Technical-Scientific Finding

• Author: Radu Slavoiu
• Pages: 183-187

LESIJ NO. XXV, VOL. 2/2018

COMPUTER SEARCH VERSUS TECHNICAL-SCIENTIFIC FINDIN G

Radu SLĂVOIU

Abstract

The study intends to establish delimitation between computer search and technical -scientific

finding, having as a starting point certain cases encountered in the judicial practice when the law

enforcement authorities confused the scopes of these two evidentiary procedures. The author

emphasises that such an error can injure the fundamental rights of the parties of the criminal case,

including the right of defence that the suspect or the defendant has, and can lead to the exclusion of the

gathered evidence.

Keywords: search, technical-scientific finding, computer system, the role of the specialists, the

exclusionary rule.

1. Introduction

It is a more and more frequent practice

that law enforcement bodies, especially

during the criminal investigation stage,

confuse the two tec hnical evidentiary

procedures: computer search and technical -

scientific finding of the storage media.

The situation seems to be generated by

the fact that both investigative methods

involve the support of specialists in fields

that exceed criminal procedure, which tends

to generate the perception that it is one and

the same procedure.

Such an evaluation is actually false,

and the decision for a technical-scientific

finding when the case asks for a computer

search can lead to a breach in certain

procedural rules that impact on the rights,

which are guaranteed as a fundamental

principle for the parties of the trial, including

on the right of defence. The problem does

not imply a simple displacement of

evidentiary procedures and this is due to the

fact that the Criminal P rocedure Code

 Assistant Lecturer, PhD, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail:

raduslavoiu@yahoo.ro).

stipulates considerably different norms in

respect to the computer search co mpared

with the technical-scientific finding.

Therefore, the consequences can take severe

forms, up to the point of a nullity of the

procedure and to the exclusion of evidence.

This study intends to wise up the

fundamental differences bet ween the t wo

evidentiary procedures and to identify the

situations and circumstances in which the

judicial authority can resort t o one of them

and to offer solutions in order to rectify an

inconsistency in case of evidence collection

during a criminal case. The anal ysis is

structured based on a real case identified in

the practice of the criminal investigation

bodies, and the arguments shall capitalize

the aspects that the doctrine has developed

till now regarding the scientific evidentiary

procedures.

Content

Jurisprudence recorded the following

situation: