Digital Evidence

Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Before accepting digital evidence a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether a copy is acceptable or the original is required.

The use of digital evidence has increased in the past few decades as courts have allowed the use of e-mails, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories, databases, the contents of computer memory, computer backups, computer printouts, Global Positioning System tracks, logs from a hotel’s electronic door locks, and digital video or audio files.

Many courts in the United States have applied the Federal Rules of Evidence to digital evidence in a similar way to traditional documents, although some have noted important differences. For example, that digital evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive, and more readily available. As such, some courts have sometimes treated digital evidence differently for purposes of authentication, hearsay, the best evidence rule, and privilege. In December 2006, strict new rules were enacted within the Federal Rules of Civil Procedure requiring the preservation and disclosure of electronically stored evidence. Digital evidence is often attacked for its authenticity due to the ease with which it can be modified, although courts are beginning to reject this argument without proof of tampering.