Admissibility of Electronic Evidence in the Court of Law [Research Document]

MailXaminer | April 18th, 2020 | Forensics

Technology is improving day by day to benefit mankind. However, the world is a combination of good and bad. Many people use technology for crime and other illegal activities. Nowadays, email is one of the popular media through which criminals commit crimes. In cases of digital crime, forensic investigators examine the whole case involving the emails, electronic devices, etc. & dig out electronic records as evidence from them.

In this blog, we are discussing the admissibility of electronic evidence in court to fight against high-tech crime based on the Indian Evidence Act, 1872 and win the case. Further, we will discuss more acceptance and relevancy of digital evidence in court in the below sections.

 Admissibility of Electronic Evidence

Electronic Evidence: Proof and Admissibility

When it comes to contacting through electronic communications, most of the electronic communications are done through emails. So, the proof of the transactions taking place is probably present in the email data which are mostly signed with electronic signatures.

Moreover, during the legal proceedings, the prosecution can use electronic evidence in court to prove the guilt of the accused. The acceptance of electronic records as evidence in the court of law has come gradually over a while. Moreover, it has also lead to many changes in the fundamental principles of the law of evidence.

In the upcoming section, we are going to show the shift that has occurred concerning the admissibility of electronic evidence to fight against high-tech crime. It depends on the two vital rules of evidence given by the Indian Evidence Act, 1872 that are: Hearsay and Primary Evidence. In the next section, we will discuss these terms in detail.

Admissible and Relevant Evidence in Court

For a long time, the law of evidence has been guided by the rule of ‘Best Evidence’ which is considered to have two basic models that are: Avoidance of Hearsay and Production of Primary Evidence. It is believed that these rules weed out infirm evidence and produce the evidence which cannot be doubted.

Let us understand the terms –

Hearsay: Hearsay is an out of court statement that is used to prove the truth. It can be defined as “all the evidence which does not derive its value from the credit given to the witness himself, but which depends on the truthfulness and competence of some other person.

For example: If person A is chosen to testify in the court and Person B told Person A that he saw Person C was stabbed by the person D. Then, in such case scenario Person A’s answer is hearsay as it relays on the statement made by Person B, who is not available in the court for cross examination.

Direct Evidence: Direct evidence is considered when a person has seen the act happening with his/her own eyes.

In the above example, person B is an eye-witness and acts as a direct evidence, since he saw the act by his own eyes.

Primary Evidence: It is referred to the original document that is being produced by the prosecutor for inspection in the court.

The copy and xerox of evidence will not be the primary evidence since it is not the original. Hence, the copy of primary evidence is considered as the secondary evidence in the court.

From the above section, we can understand that electronic data are also admissible as evidence in court. As long as the evidence is direct and not hearsay in nature or is primary evidence then the court may accept it.

Laws to Prove Admissibility of Electronic Evidence in Court

During the investigation of digital crimes, electronic evidence plays an important role to prove the crime. In this section, we are going to describe the main laws given by the Indian Evidence Act, 1872. These rules play a vital role in the admissibility of digital evidence in court or to make electronic evidence admissible in court.

65A and 65B (Indian Evidence Act, 1872): Section 65A says that the contents of electronic records may be proved following the provisions of Section 65B. Section 65B (Admissibility of electronic records) states that any information contained in electronic records in the form of recording, magnetic or optical media, etc is deemed to be a document and is admissible as evidence in court if the conditions mentioned in the Section 65B are satisfied.

The conditions of Section 65B of Evidence Act, are:

  1. The information must be produced during the consistent course of activities by the person who was having lawful control over the use of a computer device.
  2. The information has been fed regularly into the computer device within the ordinary course of ongoing activities.
  3. Throughout the material part of the said time, the device should be operating properly or with the improper operation that must not such as to affect the electronic record information or the accuracy of its contents in any of the way.
  4. Information stored in the electronic records should be reproduced or derived from such actual information that fed into the computer within the ordinary course of activities.

Section 5 (Indian Evidence Act, 1872): Evidence may be given of facts in issue and relevant facts — Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and such other facts as are hereinafter declared to be relevant.

It provides that the evidence can be given regarding only facts that are at issue or of relevance.

Impact of Considering Electronic Evidence as Primary & Direct

  • Difference Between Primary and Secondary Evidence is Blurred
    By bringing all types of computer evidence in the category of primary evidence, the statute has blurred the difference between primary and secondary forms of evidence. However, the difference is still expected to apply to other forms of documents, and the exception has been created to computers. Because of the complicated nature of computer evidence like these kinds of evidence are not easy to produce in substantial form.
  • Making Criminal Prosecution Easier
    Considering the terrorism factor in the world, the involvement of terrorists using highly sophisticated technology to carry out attacks and illegal activities. The admissibility of electronic evidence as direct and primary evidence in the court makes the criminal prosecution easier. That will help to prove the guilt of an accused in a much better way.
  • Risk of Manipulation
    The statute has overlooked the risk of manipulation while allowing all forms of computer output to be admissible as primary evidence. Tampering with the electronic evidence is not a difficult task and miscreants may find it easy to alter the records which are to be submitted in court. However, the solution to this problem is itself the technology. Different ways are developed with the help of computer forensics techniques to find a way of cross-checking whether an electronic record/evidence has been tampered with or not. If the integrity of evidence is maintained then the evidence is admissible in the court of law.
  • Opening Potential Floodgates
    Nowadays, computers are the most widely used gadgets in the world. A lot of gadgets involve computer chips in their functioning other than computers. Thus, according to the word of the law, any device involving a computer chip should be admissible as evidence in court.

These are some of the main impacts of accepting electronic records as evidence in court during the court proceeding of the criminal cases. The admissibility of electronic evidence in court to fight against high-tech crime brings a large shift in the digital crime investigation field. Through the direct acceptance of digital evidence in court, it simplifies the crime investigation process and court procedure.

Final Words

In the above section, we discussed the admissibility of electronic evidence in court during the criminal proceedings. The availability of electronic evidence has become a necessity in most of the cases to establish the guilt of the accused or the liability of the defendant. The technology has proved itself to be the solution to deal with crimes caused due to digital devices, emails, etc. With computer forensics, it has become easy to identify tampering in case of electronic evidence. Now, digital evidence is also considered as the primary evidence during the court proceeding.