The Electronic Evidence in Trial Proceedings

Author:Monica Pocora
Pages:141-145
Legal Sciences in the New Millennium
141
The Electronic Evidence in Trial Proceedings
Monica Pocora1
Abstract: This paper will consider theoretical and practical issues which arise in trial proceedings,
throughout the virtual presence of persons involved. The EU Convention of 2000 provide the legal base for
the use of video conference. In most jurisdictions, all forms of evidence is admissible, subject to rules relating
to the exclusion of evidence because of improper actions or because the inclusion o f the evidence would be
unfair to the defendant. There is a difference between the admissibility of the evidence an d laying the correct
foundations before the evidence can be admitted.
Keywords: digital; admissibility; probative value; jurisdiction
1. The Admissibility of Electronic Evidence
Electronic evidence is not new: for instance, in the UK, Professor Colin Tapper wrote Computers and
the law in 1973 and Computer law in 1978, and Alistair Kelman wrote The computer in court: a guide
to computer evidence for lawyers and computing professionals in 1982. Although the discussion of the
technical issues relating to electronic evidence was relatively slight in the early days, nevertheless
electronic evidence (initially called computer evidence) has been adduced into legal proceedings for at
least 40 years, if not 50 years. For this reason, the topic should not be anything new.
Investigators and prosecutors across the world have begun to deal with the identification, gathering,
preservation and validation of digital evidence, including the chain of custody and ensuring that the
evidence is transported and stored in such a way as not to alter or destroy the evidence. It is also
necessary to analyze the evidence by using appropriate tools, and to provide a report that a judge and
members of a jury (if a case is tried by a jury or a combination of judge and jury) understand.
Two important practical issues that must be addressed properly to ensure the evidence cannot be
criticized by the defense are (i) the importance of gathering all relevant evidence his includes
physical items such as a keyboard for fingerprint and DNA samples and the mouse, because most mice
now include advanced memory functions that track and record what it does, and (ii) to photograph the
scene before removing any items, and video the actions of investigators if they are required to recover
evidence from a device that is switched on.
1 Senior Lecturer, PhD, “Danubius” University of Galati, Romania, Address: 3 Galati Boulevard, 800654 Galati, Romania,
Tel.: +40.372.361.102, fax: +40.372.361.290, Corresponding author: monicapocora@univ-danubius.ro.

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