What Is Digital Evidence?

What Digital Evidence Generally Means

Digital evidence is a broad umbrella term generally used to describe information that is stored or transmitted in electronic form and that may become relevant in a criminal case. Because so much of modern life generates electronic data — through devices, accounts, networks, and applications — a wide range of electronic information can, in some circumstances, be treated as evidence.

The term itself is not a precise legal category with a single fixed definition. Its meaning can vary depending on the jurisdiction, the nature of the case, and how the term is used in a particular court or statute. What counts as digital evidence in one proceeding may be characterized differently in another context.

Like other forms of evidence, digital evidence does not carry a fixed meaning or weight. Whether and how it becomes relevant in a case depends on many factors, including what it actually shows, how it was obtained, and what questions arise about its authenticity or completeness.

Common Kinds, in General

Digital evidence can take many general forms. Some categories that commonly arise in criminal proceedings include:

• Device data — information stored on or generated by phones, computers, tablets, or other electronic devices, such as files, application data, or usage records.
• Account and message data — information associated with online accounts, email, or electronic messaging, which can include stored communications or records of activity.
• Images and video files — digital photographs, video recordings, or still images captured by cameras, phones, or other recording devices. One related example is surveillance footage, which can sometimes be treated as a form of digital evidence.
• Location information — electronic records that may reflect geographic location at a point in time, such as data generated by devices or networks. This is a particularly jurisdiction-variable area, as rules about when and how such data may be obtained can differ significantly.
• Transaction and activity records — electronic logs or records associated with financial transactions, network access, or other digital activity, which may be held by third parties rather than the individual involved.

This list is illustrative, not exhaustive. The categories of information that can qualify as digital evidence are broad and continue to expand as technology evolves.

It Generally Requires Specialized Handling

One concept that frequently arises in discussions of digital evidence is that it generally requires specialized handling and interpretation. Electronic data can be altered, corrupted, or misread if not collected and processed according to accepted protocols, and the significance of digital information is often not self-evident without technical context.

For these reasons, digital evidence in criminal proceedings is often presented through or examined by someone with technical expertise. The role of an expert witness can be particularly relevant when technical knowledge is needed to explain what digital information does or does not show to a judge or jury.

Digital evidence also falls within the broader category of forensic evidence, which encompasses scientific or technical methods used to examine and present evidence in legal proceedings. The standards and methodologies used in digital forensics can themselves become a subject of inquiry in a case.

What constitutes adequate handling can vary by jurisdiction and by the specific type of digital information involved. There is generally no single universal standard that applies across all cases or courts.

How It Is Obtained Can Matter

A significant concept in the area of digital evidence is that the manner in which electronic information was obtained can affect whether and how it may be used in a criminal proceeding. Rules governing searches of electronic devices and access to digital data are an active and evolving area of law, and they vary considerably by jurisdiction.

In many jurisdictions, law enforcement seeking to search a device or access certain types of electronic data may be required to obtain a search warrant or other legal authorization. The specific requirements can differ depending on the type of data involved, where it is stored, and who holds it. Third-party held data, for example, may be subject to different rules than data found on a device in someone's possession.

When questions arise about whether digital evidence was obtained in a manner consistent with applicable rules, one avenue that can be explored in court is a suppression hearing. This is a proceeding in which a court may consider whether evidence should be excluded because of how it was gathered. The outcome of such a hearing, if one occurs, can depend heavily on the specific facts and the applicable law in that jurisdiction.

This is an area where rules are frequently changing as courts consider new technologies, and generalizations should be treated with caution.

Authenticity, Completeness, and Meaning

Even when digital evidence has been properly obtained, questions can arise about whether it is authentic, whether it is complete, and what it actually means in the context of a particular case. These are separate concepts, and each can become significant in different ways.

Authenticity refers, generally, to the question of whether the evidence is what it is claimed to be — whether a file, image, or record has been altered or fabricated, or whether it accurately represents what it purports to show. The concept of authentication of evidence encompasses the process by which a party may be required to establish that a piece of evidence is genuine before it can be used.

Completeness refers to whether the digital information presented reflects the full picture or only a portion of a larger set of data. A fragment of electronic activity, viewed in isolation, can sometimes convey a different impression than the same data viewed in its full context.

Meaning — what the data actually shows — is often the central question. Digital evidence, like other evidence, can be consistent with many different interpretations. It is not inherently incriminating or exculpatory. The same piece of electronic information can, depending on context and interpretation, be consistent with involvement in the alleged offense or with an entirely innocent explanation. How it is characterized and what weight it is given can depend on how it is presented, challenged, and contextualized in the proceedings.

Questions to Explore About Digital Evidence

When digital evidence is part of a criminal case, there are several conceptual areas that can be worth understanding. Some people find it useful to ask questions such as the following when trying to make sense of what role digital evidence may play:

1. What kind of digital information is involved, and where was it stored or transmitted — on a personal device, through an online account, or held by a third party — since the applicable rules can differ considerably across those contexts?
2. What process was used to obtain the digital information, and is there any question about whether that process was consistent with the rules that apply in the jurisdiction where the case is being heard?
3. Has the digital evidence been examined or explained by someone with relevant technical expertise, and are there questions about the methodology used to collect, process, or interpret it?
4. Does the digital evidence represent a complete picture, or does it reflect only a portion of a larger dataset — and is there a question about what additional context might change how the information is understood?
5. What does the digital evidence actually show, and in what other ways could the same information be interpreted — including interpretations that would be consistent with an innocent explanation?