Presenting Digital Evidence in Court

With how much of our collective lives are experienced online, a trial that doesn’t include digital evidence may soon be the rare exception. Between the massive collection of data across commercial operations and the intentional transparency of individuals using social media, digital information can often prove means, motive, and opportunity.

Presenting digital evidence in court for maximum impact, however, can pose challenges. Attorneys must meet strict admissibility standards, overcome technology woes, and ensure juries understand the fine points of complex data.

What Is Digital Evidence in Court?

While you can loosely define digital evidence as any pertinent information that can be stored or preserved digitally, a more thoughtful description is evidence that is originally created or captured at a digital level. 

During discovery, for instance, teams may explore textual or photographic content copied from physical sources for security, convenience, and the ability to organize and annotate them within a unified set of digital records: 

• Scans of documents (e.g., forms, handwritten notes, signed memos)
• Digital copies of videotapes and other physical audio and video formats
• Scans of traditional photographs, microfilms, slides

True digital evidence, however, is data with a digital origin that must be preserved and documented as such, including¹:

• Communications data (e.g., emails, texts, chats, calls, and virtual meeting transcripts)
• Social media content
• Logs of online transactions and activities
• Cloud storage data and files, including CRM, project management, and other apps
• Web browsing history
• Location tracking based on mobile phone and other GPS sources
• Digitally captured surveillance footage and other audio and video recordings

Another critical component is metadata (or “data about data”), which can be provided as direct or circumstantial evidence, as well as being used for evidence authentication.² Metadata provides the invisible-to-the-naked-eye information about a digital file, such as: 

• Date and time of creation 
• File name, size, author, etc.
• History of modifications

How Digital Evidence Is Collected and Preserved

Just as a crime site requires specialists to document, collect, and preserve key physical evidence, experienced forensic specialists and specific protocols are required for digital evidence. This includes: 

• Capturing original files with full metadata intact
• Providing chain of custody documentation
• Ensuring original, unaltered digital evidence is stored securely 
• Keeping originals separate from working files (e.g., reference, annotation, graphic use)

The overarching goal of digital forensic jurisprudence is to ensure that digital evidence is admissible, authentic, accurate, complete, and convincing to jurors.³ Detailed guidelines on the collection and forensic analysis of digital evidence have been published by multiple sources, including the Scientific Working Group on Digital Evidence and the US National Institute of Justice.⁴ They cover best practices, including: 

• Collection, preservation, and analysis without alteration
• Competency and testimony of the individual accessing the data
• Audit trail of all processes applied to the evidence
• Justifiability of all actions and methods used 
• Repeatability of all tasks by an independent assessor 
• Reproducibility of the same results in a testing environment

Admissibility Standards for Digital Evidence

All evidence must pass the rules of evidence that govern the jurisdictions in which it is presented. Of particular concern for digital evidence are: 

• Authentication under Federal Rule of Evidence (FRE) 901⁵
• Self-authenticating electronic data and records per FRE 902 (13) and 902 (14)⁶
• Data authentication methods explored in the 2017 Amendment to FRE 902
• Hearsay exception for business records detailed in FRE 803(6)⁷
• Relevance and specific admissibility standards per FRE 401 and 402^8,9
• Expert witness testimony as part of authentication according to FRE 702¹⁰
• Case law related to the admissibility of digital enhancement practices¹¹
• The use of Frye and Daubert hearings specific to digital evidence

Common Challenges When Presenting Digital Evidence

With the right protocols and professionals in place, presenting digital evidence in court can help achieve successful outcomes, but it does come with challenges. Consider: 

• File format compatibility – Securing the hardware and software to best display digital data, often further complicated by varying virtual courtroom and digital evidence sharing platforms

• Data integrity – Proving the security, chain of custody, and handling and analysis methods of digital evidence to avoid data corruption or interference

• Privacy and security – Addressing data privacy and cybersecurity concerns, extending to overlapping protocols, such as HIPAA regulations concerning protected health information (PHI)

• Expert witness necessity – Preparing experts to testify on dense, technical information clearly and effectively

Best Practices for Presenting Digital Legal Evidence in Court

The right partners, protocols, and practices will help you succeed when presenting digital evidence in court. Aim to:

• Use professional, engaging trial demonstratives and visual aids
• Plan for early case assessment and collaboration
• Test and secure optimal courtroom technology setups
• Work with expert litigation support providers

Sources: 

1. Jatheon. Digital Evidence Examples — Insights from Recent Legal Cases. https://jatheon.com/blog/digital-evidence-examples/
2. Leppard Law. Analyzing the Admissibility of Digital Evidence in Threat Prosecutions in the US. https://leppardlaw.com/federal/computer-crimes/analyzing-the-admissibility-of-digital-evidence-in-threat-prosecutions-in-the-us/
3. Herald Scholarly Open Access Journal of Forensic Legal & Investigative Sciences. Digital Forensics Investigation Jurisprudence: Issues of Admissibility of Digital Evidence. https://www.heraldopenaccess.us/openaccess/digital-forensics-investigation-jurisprudence-issues-of-admissibility-of-digital-evidence
4. Lexology. Admissibility of digital evidence in court. https://www.lexology.com/library/detail.aspx?g=29828d6d-8396-4070-9424-05ac2e0ecfae
5. Cornell Law School. Rule 901. Authenticating or Identifying Evidence. https://www.law.cornell.edu/rules/fre/rule_901
6. Cornell Law School. Rule 902. Evidence That Is Self-Authenticating. https://www.law.cornell.edu/rules/fre/rule_902
7. Cornell Law School. Rule 803. Exceptions to the Rule Against Hearsay. https://www.law.cornell.edu/rules/fre/rule_803
8. Cornell Law School. Rule 401. Test for Relevant Evidence. https://www.law.cornell.edu/rules/fre/rule_401
9. Cornell Law School. Rule 402. General Admissibility of Relevant Evidence. https://www.law.cornell.edu/rules/fre/rule_402
10. Cornell Law School. Rule 702. Testimony by Expert Witnesses. https://www.law.cornell.edu/rules/fre/rule_702
11. Crime Scene Investigator Network. The Admissibility of Digital Evidence in Criminal Prosecutions. https://www.crime-scene-investigator.net/admissibilitydigitaleveidencecriminalprosecutions.html