Digital Evidence and Records of Investigation Prior to Court

Digital materials assessed by police and other authorities in the course of investigation and retained as evidence of due process such as case files and correspondence, including materials not submitted to court.

Digital Species: Legal Data

Consensus Decision

Added to List: 2019

Previously: Critically Endangered

Imminence of Action

Action is recommended within twelve months, detailed assessment is a priority.

Significance of Loss

The loss of tools, data or services within this group would impact on people and sectors around the world.

Effort to Preserve | Inevitability

It would require a major effort to prevent losses in this group, such as the development of new preservation tools or techniques.

Examples

CCTV; Email; 3d scanning; social media interactions; police records; court records; text messages.

‘Practically Extinct’ in the Presence of Aggravating Conditions

Poor chain of custody; fragile or obsolete media; dependence on proprietary formats or products; lack or loss of documentation; inaccessible to web harvesting technologies; lack of version control; lack of integrity checks or integrity records; poor chain of custody.

‘Endangered’ in the Presence of Good Practice

Meticulous transfer and disclosure processes.

2023 Review

This entry was added in 2019 as an entry made in 2017 for ‘Digital Legal Records and Evidence,’ which the Jury split into four more discrete entries. This category includes evidence prior to court that may form part of an investigation or gathering of evidence but which are not formally submitted as evidence. It recognizes that police and other investigating authorities are not limited in the types of evidence that they need to administer, but that this creates an almost unbounded limit of preservation requirements to ensure authenticity and admissibility. A 2021 risk was identified based on examples bringing to question whether legal bodies have the skills and capabilities to preserve these materials should they need them if a case is reopened etc. The 2022 Taskforce found no significant trend towards greater or reduced risk.

The 2023 Council agreed with the Critically Endangered classification with the overall risks remaining on the same basis as before (no change to the trend).

Additional Comments

In the International organizations realm, more and more of these investigative missions are being set up. They are collecting huge volumes of data and the same issues around chain of custody, integrity records/checks continue to be aggravating especially with respect to authenticity and admissibility. Given the potentially huge volumes of data, and the drive to keep costs low, it is debatable whether there will be sustained funding for preservation.

Case files and correspondence are one thing: retention of these should be clear but may differ widely between jurisdictions and levels of government. If retention is not long-term or permanent, the risk of loss may not be so critical. Retention of 'unused' or 'potential' evidence is likely a different matter altogether. Is it even a record? Certainly, it is not a record of the court. Should it be returned to the suspect or accused? Are their rights being considered here - not just in terms of preservation, but also simply disposition? There may be legal and ethical issues around this that need to be fleshed out in conjunction with assessing its preservation risk.

I was talking about forensic techniques with some law enforcement types a while back. Police forces tend only to have the resources to maintain forensic capability with relatively recent technology - for older technology, institutions and specialist companies are the only sources of expertise. This has an impact on cold cases.

There have been many examples of convictions being overturned when previously unused evidence was brought to light. Therefore, the retention and preservation of unused evidence can have immense value.