Problems of determining the admissibility and appropriateness of digital (electronic) evidence in criminal proceedings

Abstract

The development of information technology, along with its indisputable advantages, has brought to our lives a number of negative phenomena related to the illegal use of computers and telecommunications. However, the issue of using digital information as evidence in the criminal procedural legislation of Ukraine remains almost unsettled, in particular, the place of digital evidence in the system of procedural sources of evidence (digital evidence is difficult to unambiguously attribute to material evidence or documents) remains unclear. Criminal proceedings raise problems regarding the correct assessment of digital (electronic) evidence for their identity and admissibility, which certainly does not contribute to the effective use of digital technologies and sources of information in national proceedings. The purpose of the article is to research the problematic issues of determining the appropriateness and admissibility of digital (electronic) evidence during criminal proceedings, as well as to identify and disclose individual principles for their proper procedural evaluation. The research deals with the current state of theoretical studies of the issue of the appropriateness and admissibility of digital evidence both in Ukrainian criminal procedure science and abroad. The peculiarities of the requirements for the assessment of traditional evidence and digital evidence in criminal proceedings are analyzed. The author identifies the features of obtaining (collecting) digital evidence, given their intangible nature, with a view to their further positive evaluation by admissibility and appropriateness criteria. Taking into account the international experience, the author concludes that there is a need to distinguish separate principles of admissibility and availability for digital evidence, revealing their content. The urgent need to settle this issue, both at the legislative level and through appropriate judicial clarification, is substantiated. It is emphasized that in view of the specific nature of digital (electronic) evidence to ensure their authenticity and reliability in criminal proceedings is associated with the promptness of investigative actions, mandatory involvement of an expert, professional training of all subjects of evidence and steady adherence to recommendations for working with digital evidence.