Problems of Using Digital Evidence in Criminal Justice of Ukraine and the USA
Galina Avdeeva, Elżbieta Żywucka-Kozłowska · Theory and Practice of Forensic Science and Criminalistics · 2023
Current issues of using digital evidence in criminal justice of Ukraine and the USA have been considered and proposals have been provided for their resolution. For this purpose, methods of theoretical analysis and synthesis, formal legal analysis, comparative legal method, and special methods of cognition have been applied. The concepts of “electronic evidence” and “digital evidence” have been differentiated. Analysis of 64 decisions of Ukrainian courts of criminal jurisdiction and 31 decisions of the US Court of Appeal and the Supreme Court has revealed certain challenges in recognizing information in digital format as admissible and veracious evidence. The experience of the US judiciary can be useful for reforming Ukrainian legislation and the development of methodological guidelines for digital evidence use. It has been proposed to amend the Criminal Procedural Code of Ukraine with regulations that would contain the definition for the digital evidence concept and its procedural media; differentiation of the concepts of “electronic evidence” and “digital evidence”; introduction of a detailed procedure for seizing digital information, its review, recording and storage (with indication of the list of mandatory information on digital evidence which must be procedurally established); an algorithm for assessing veracity of digital evidence and an expert conclusion relying on certain criteria. It has been proved that a rapid change in technologies for detecting, seizing, recording and researching digital information has presented certain challenges for investigators, judges, prosecutors and employees of investigative agencies of Ukraine. It is recommended to improve the efficiency of using digital evidence in court proceedings by developing guidelines for working with such evidence and correspondingly improving qualifications of employees in law enforcement agencies.