Electronic evidence in criminal proceedings

There is a viewpoint in the current domestic criminal procedural doctrine that physical evidence implies objects, things and documents, and the content of physical evidence covers the traces, features and characteristics reflected on the above objects; they are available for immediate perception and can be found in the course of examination. The development of electronic technical means and their use for the commission of crimes have raised a question about the nature of information and correlation between electronic information of evidentiary value and "ordinary" physical evidence. Nowadays, there is a popular view point that it is necessary to draw a distinction between electronic information of evidentiary value and "ordinary" physical evidence. Some authors consider computer information to be physical evidence and claim that the data storage device is an object but only the content and characteristics of this object are of evidentiary value. Thus, it is the information itself but not a storage device that has evidentiary value. It is possible to revise the attitude towards the characteristics of thingness and materiality of physical evidence. Information has no material character, but today IT environment, existing in telecommunication channels, is a full-featured substitute of the material world. Events, which happen in this world, including crimes, reflect in different "objects", in minds of subjects. When a cybercrime is committed, its information traces are similar to the material traces of an "ordinary" crime. An essential feature of physical evidence is its objective link with the fact to be proven, thus, it serves as a means for ascertaining facts that are being proved. This feature can be referred to electronic information which serves as a crime instrument, target of crime or a trace of crime, e.g., an attempted unauthorized access fixed in the register of a definite program. Considering evidential significance of electronic information, it is necessary to take into account that it is not a physical characteristic of a material carrier of information, its structure, its external view, but it is the content of the given information. To understand computer information, we cannot rely on the elementary mechanical reflection of facts. The algorithm developed by software engineers determines the mechanism of the computer information presentation; that is why this software is a means of fact reflection. Features of information objects, which are the object, instrument of a cybercrime, do not exclude a possibility to refer it to physical evidence. In such a case, it is necessary to specify that this type of physical evidence should refer to technology-related objects or processes. Despite the fact that electronic evidence occurs in the electronic environment, not all of it can be classified as documents: it is necessary to separate electronic evidence-documents (electronic) and electronic physical evidence.

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