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Evidence in a criminal trial includes all potentially relevant information from both sides of the case. Prosecutors and defense attorneys gather evidence to corroborate their arguments and have a growing number of sources from which to draw.

Digital sources in particular have grown in popularity, bringing with them added complications to the evidence-gathering process. Not only is digital evidence useful in alleged electronic crimes like identity theft and phishing, but it’s also relevant to establishing a case for other alleged crimes committed offline.

One concern defendants may have is whether any digital information is off-limits from discovery in a criminal trial. The short answer is: no.

Prosecutors utilize evidentiary procedures such as search warrants and subpoenas to build a case using a defendant’s information, digital or not. Typically, retrieval of digital data comes from a variety of sources, including but not limited to:

  • Hard drives
  • Mobile devices
  • Networks used by a party in the case
  • Email accounts

How to manage the use of digital evidence

Any and all relevant information from digital and other sources can be in play during a criminal proceeding. However, there are ways to combat the use of some digital evidence depending on the process used to obtain it and the management of that information.

A skilled defense attorney knows the key elements of testing the relevance and validity of evidence presented in a criminal trial. Some considerations include maintenance of the evidentiary chain of command and the legality of the search and seizure used to gather the information.

The Fourth Amendment to the U.S. Constitution protects the right of the people from unreasonable searches and seizures. Simply put, a prosecutor can’t use unlawfully gathered information against you in the course of a criminal proceeding. Questioning and verifying the legality of evidence-gathering measures is a basic element of a defense strategy.

New issues with digital evidence

Although the onset of technology is part of everyday life for most people, the courts don’t catch up as quickly. Issues with digital evidence-gathering crop up regularly with the added complications of who owns what data and who has the right to withhold or give up information.

Some technology companies refuse to comply with requests from law enforcement, meaning they don’t give up user data. Apple infamously refused to unlock a device at the request of the FBI citing concerns over a breach of user trust and privacy. That’s an issue for government agencies and prosecutors to handle and it may take time to find a logical and dependable solution.

In the meantime, if you are the subject of a criminal investigation it’s worth knowing what evidence could prove relevant in a case. Your digital footprint matters, but know that a reliable, experienced legal expert can ensure all digital evidence is lawfully and responsibly used.