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The Authentication of Digital Evidence in Criminal Justice: The Latin and Anglo-Saxon Criminal Law Perspective
 
PIIS278229070031781-5-1
DOI10.18254/S278229070031781-5
Publication type Article
Status Approved
Authors
Fahil Abdulkareem 
Occupation: Lecturer
Affiliation: Duhok Polytechnic University (DPU)
Address: Duhok, 61, Zakho Road, 1006 Mazi Qr Duhok, 42001, Kurdistan — Iraq
Abstract

The emergence of the internet and the widespread use of information systems have led to new challenges for criminal law, both in terms of substance and procedure. Digital evidence has numerous advantages, being scientific evidence that is difficult to dispose of and can be replicated. When it comes to the probative value of this evidence, the criminal judge has significant powers in evaluating digital evidence. For digital evidence to be accepted in court, three conditions must be met: legitimacy of evidence, judge's certainty, and discussion of evidence. The authority of the judge to accept digital evidence depends on the legal system. There are two main legal systems: the Latin system, known as the system of free evidence, and the Anglo-Saxon system, known as the system of restricted evidence.

Keywordsdigital forensic evidence, criminal justice, algorithmic criminology, democracy of justice, Iraqi criminal justice system
Received26.07.2024
Number of characters17255
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Table of contents

INTRODUCTION
DEFINITION OF DIGITAL EVEDENCE
CHARACTERISTICS OF DIGITAL EVIDENCE
THE COMMON TYPES OF DIGITAL EVIDENCE
THE BASIC CONDITIONS OF DIGITAL EVIDENCE
THE JUDGE’S DISCRETION IN THE ADMISSION OF DIGITAL EVIDENCE
CONCLUSION
1

INTRODUCTION
2 Forensic evidence is the core of proof and a means of attributing or denying a criminal incident to the defendant. Therefore, it is important at all stages of the trial and through it, the truth is known. Forensic evidence is aimed at proof, and this is defined as the proof of a legally significant fact to the authorities responsible for criminal proceedings using the methods provided by law following the regulations to which it is subject.
3 Scientific and technological progress has given rise to the information system, with its databases, programs and information, which has reached a large proportion of people in the form of information networks and the undeniable benefits they bring to all cultural, scientific and political levels. On the other hand, it has also opened up a space for considerable risks, as the information system has become a place and a means for committing information crimes (cybercrimes).
4 For traditional forensic evidence to be accepted in court, it must be specific, direct, and probative to prove the incident. Similarly, digital evidence must meet specific criteria to be accepted in court. This raises the question: What is meant by digital evidence, and what authenticity does it have in Latin and Anglo-Saxon criminal justice systems?
5

DEFINITION OF DIGITAL EVEDENCE
6 Definitions of digital forensic evidence have varied between broadening its concept and narrowing it. The Conference of International Investigators defined it as “information and data of potential value to an investigation that is stored or transmitted in digital form. Digital evidence differs from traditional evidence in multiple ways:
7

a.It is often highly complex, frequently scattered among different physical or virtual locations, and requires expertise and tools to collect.

b.It can easily be altered, accidentally or intentionally, possibly without leaving any trace.

c.It can easily be copied and distributed, presenting challenges to preserving confidentiality.

d.It can be temporary in nature: network logs, Internet browsing history, social media posts, instant messages, cached data and deleted data can be lost if not preserved in a timely manner (CII 2021)”.

 
8 Digital evidence can be described as information retrieved from computers in the form of magnetic or electrical files or pulses. This data can be collected and analysed using specialised programs, applications, and technology. The findings can then be presented as evidence that is admissible in court. According to Horsman (2023), “Information that originates in the digital world and can be used as evidenc, in a court of law in the form of physical extracts or documentation can be referred to as digital evidence”.
9

CHARACTERISTICS OF DIGITAL EVIDENCE
10 Digital evidence has many advantages over traditional forensic evidence. It is a type of scientific evidence that is invisible and difficult to dispose of. This evidence can be easily retrieved with a high degree of accuracy (Stoykova 2023). Additionally, digital evidence can be characterised by several features, including those listed below:
11 a.Invisible evidence refers to data and information in an intangible electronic form (Morelato et al. 2023), which is realised using computer hardware and software systems. b.Digital evidence is scientific evidence, which means it must adhere to scientific rules. In comparative judiciary, the law seeks justice while science seeks the truth. c.The evidence in digital form is technical in nature. As technology produces digital pulses, its value lies in the ability to work with the hardware components of the computer (Forte 2003). This data is dynamic, high-speed, and transmitted from one location to another through communication networks. d.Reproducibility or copying of digital evidence, is a crucial feature that reduces the risk of damaging the original evidence (Choi and Yang 2021). This is because the process of copying is identical to the method of creation, which creates an effective guarantee for preserving the evidence from loss and damage by utilising exact copies of the evidence. e.Digital evidence is difficult to remove as retrieval programs can recover it even after an order is issued to delete it.  
12

THE COMMON TYPES OF DIGITAL EVIDENCE
13 4.1. Digital messages Written communications between two or more parties have been considered among the most reliable pieces of evidence in the history of law. These communications not only help investigators gain new insights into a crime, but also define relationships between suspects, validate statements, and establish a timeline of events (Sokol et al. 2023). Investigators cannot disregard the source of a digital message, despite their primary interest in its content. A vast range of communication methods may be submitted as evidence in our digital age, including text messages that can be sent through smartphones, social media platforms, instant messaging software, and emails. In addition, digital memos and documents can also serve as communication. 
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