Admissibility of digital evidence

In the last decades, ‘digital’ or ‘electronic’ evidence has become a central element in most criminal investigations. Indeed, due to the spread of informatics, today digital data is necessary to prosecute not only cybercrimes but also offences which are just incidentally committed with or facilitated by the use of some digital device.2Although the digital dimension touches upon most aspects of our daily life and simplifies many of our everyday activities, dealing with digital evidence from a legal perspective presents several complications that make the topic quite a challenging one. The chapter first briefly presents the main characteristics that make digital evidence so critical for the law of evidence (Section 5.2). Digital forensics standards and guidelines that describe how to collect such data, developed by the most authoritative bodies at the international and European levels, will also be illustrated (Section 5.3). Against this reconstruction, the scarce European statutory bases currently referring to the admissibility of evidence will be highlighted (Section 5.4). Given their limits, the analysis will then move to the jurisprudence of the European Court of Human Rights (ECtHR) and, especially, of the Court of Justice of the European Union (CJEU) (Section 5.5). On such grounds, some final suggestions will be exposed, supporting the need for the EU to equip itself with common admissibility criteria in general, and with specific admissibility rules concerning forensic evidence (including digital data) in particular (Section 5.6).