Criteria for the admissibility of digital (electronic) evidence in criminal proceedings

Abstract

The article is devoted to consideration of modern problems of determining the admissibility of digital (electronic) evidence in criminal proceedings. Given the importance of the outlined issues, the main purpose of the study is to characterize each component of the admissibility of such evidence, namely: the proper source of receipt, the proper subject, and the proper method of collection. It is emphasized that the biggest doctrinal problem that creates an obstacle in the definition of such criteria is the lack of a unified scientific vision regarding the concept of digital (electronic) evidence and the definition of its source. The existence of three scientific approaches to the solution of this problem was established, taking into account the author's position on possible ways of its elimination. Some practical aspects related to the problems of compliance with the criteria of admissibility of digital (electronic) evidence during the investigation of criminal offenses are disclosed. On the basis of a systematic analysis of scientific work and judicial practice, it was determined that the difficulty of solving problematic aspects of the admissibility of digital (electronic) evidence is related to their complex technical nature. This is due to the fact that digital (electronic) evidence contains abstract technical and mathematical models, characterized by specific conditions of origin, existence, copying and storage, which significantly differ from other types of evidentiary information. It has been proven that when determining digital (electronic) evidence, such a mandatory feature as relevance to a certain criminal proceeding should be displayed. This is explained by the fact that in a criminal trial, digital (electronic) evidence can only be the information that is of direct importance for a certain criminal proceeding. Another mandatory component of the definition of “digital (electronic) evidence” should be an indication of its specific nature. At the same time, it is inappropriate to recognize the approach when the definitions simultaneously indicate the electronic nature of such information and its concentration on a certain electronic medium. Information that is on a certain electronic medium is electronic and not any other. Otherwise, it leads to duplication and is a logical fallacy. It is suggested that the source of digital (electronic) evidence be considered a digital (electronic) object by means of which this evidentiary information was created, recorded or transmitted. The lack of official definition of digital (electronic) evidence and their sources, in contrast to civil and administrative procedural legislation, is among the shortcomings of the current criminal procedural legislation of Ukraine. However, the definitions proposed by the legislator contain shortcomings, in particular, the fixed definitions of digital (electronic) evidence contain an unjustified opposition of related concepts, such as “information”, “data” and “facts”.