Digital Evidence Admissibility & Rules of Evidence
A Practical Guide to Digital Evidence for Defense Attorneys
Digital evidence is information created, stored, processed, or transmitted electronically that may be offered in court. Examples include text messages, email, social-media content, photographs, video, audio, mobile-device data, computer files, cloud records, location information, cellular-provider records, application data, vehicle data, and records generated by electronic systems.
Digital evidence generally must satisfy the same evidence rules as other evidence. The fact that information came from a phone, computer, service provider, forensic tool, or electronic system does not automatically make it accurate, complete, reliable, attributable to a particular person, or admissible.
Digital evidence can also be more voluminous, easily duplicated or modified, and more readily available than many traditional forms of evidence. Digital presentations may therefore create distinctive issues involving authentication, hearsay, proof of content, completeness, reliability, and the weight of the evidence.
For defense attorneys, evaluating digital evidence requires examining what the evidence is, what it is offered to prove, whether it is authentic and attributable, whether the offered version is accurate and complete, whether another rule or constitutional protection limits its use, and whether technical conclusions require specialized knowledge.
This page provides a practical framework for identifying and documenting evidentiary facts and recognizing issues that may affect admissibility, objections, motions, witness examination, expert testimony, and the weight the fact finder should give the evidence.