Cybercrime has exploded over the last few years. According to the FBI’s 2023 Internet Crime Report, the number of complaints over digital theft or similar issues nearly doubled from 2019 to 2023, while the total value of losses more than tripled from $3.5 billion to $12.5 billion. With much more at stake than mere zeros and ones, digital evidence is becoming more valuable each year.

But digital evidence applies to far more than just digital crimes. When so much of our lives either takes place or somehow passes through computers, digital investigations are now a normal part of nearly any criminal case or lawsuit. When even trials can be conducted virtually, establishing a reliable process for collecting and reviewing electronic evidence is essential for supporting an effective justice system.

So, what exactly is digital evidence, how is it regulated, and what kind of tools do you need in the age of virtual trials? Let’s explore these questions and more.

What Is Digital Evidence?

According to the National Institute of Justice, digital evidence is “information stored or transmitted in binary form that may be relied on in court.”

In other words, any data or files stored on a computer, mobile phone, portable hard drive, or similar device can be used as digital evidence in a court of law. And, while the evidence itself may be in digital form, it can be used to prosecute cases unrelated to cybercrime, from child abuse to tax fraud and anything in between.

Digital evidence is now used at trial in as many as 90% of criminal cases. In fact, it’s so integral to the judicial process that many law enforcement agencies employ experts in computer forensics to help them analyze this type of evidence and use it in trials.

Types of Digital Evidence

This type of evidence comes in many forms across a wide range of digital devices. Common examples of digital evidence include:

• Emails and other digital messages: Copies of email communication, text messages, or exchanges in other messaging apps can all provide background information to aid the case of a defendant or plaintiff.
• Files and documents on a computer: Text files, invoice records, receipts, and many other stored documents may provide evidence in a trial or lawsuit.
• Digital photos, videos, or audio recordings: Digitally stored photos, videos, and audio, can play a major role in criminal investigations for cases involving murder or child pornography, for instance. More recently, police body cam videos have been used in court, along with digital transcripts of the body cam footage.
• Web browser history: Web browser history may provide evidence that someone purchased products to build a weapon or engaged in illegal activity in online forums.
• Device location data: Smartphones and other GPS-enabled devices store information about a person’s whereabouts at specific times, providing critical evidence in some digital investigations.
• Transcripts of legal proceedings: Legal proceedings can themselves become digital evidence in the form of video depositions or digital transcripts, making accurate legal transcription more important than ever.

Electronic Evidence Collection

Digital forensics, also known as cyber forensics or computer forensics, is the science of collecting and studying digital evidence for use in criminal or civil investigations. It requires specialized training in the study of digital technology, even down to specific areas of electronic evidence collection. For instance, one expert in technology and forensics may specialize in data on mobile devices, while another is trained in finding and analyzing digital images.

Typically, only Certified Media Examiners are authorized to collect and examine such evidence, but no unified certifying body exists to provide clear standards in the field of digital forensics. Whatever the specifics of their training, these certified examiners must be adept at finding and securing a form of evidence that is relatively easy to hide or destroy.

The process of collecting electronic evidence may involve seizing mobile phones, tablets, and computers; accessing online networks; and hacking into servers. Sometimes, devices must be sent to a laboratory for further investigation.

Rules and Regulations of Digital Evidence

The field of digital forensics is evolving at breakneck speed. The process of collecting, verifying, and analyzing digital evidence is growing increasingly complex in an era of artificial intelligence and deep fakes. As such, regulations around electronic evidence collection are constantly changing.

Currently, forensics investigators look to several sources for guidelines and regulations in this area. For instance, Rule 902 of the Federal Rules of Evidence defines the types of digital evidence that can be considered self-authenticating. The Conference of International Investigators (CII) also put forth the General Principles for Digital Evidence in 2021, with the goal of defining “common principles for the proper handling of digital evidence.” Likewise, the National Institute of Justice has its Digital Evidence Policies and Procedures Manual for law enforcement agencies.

Those are just high-level guidelines. There are also state-specific rules about recording phone calls or collecting other forms of digital evidence, and specific law enforcement agencies, such as state or municipal police departments or financial regulatory agencies, may have their own rules. Ultimately, law enforcement officials must keep up with an extensive and ever-changing set of regulations and guidelines around digital evidence.

Analyzing the Digital Evidence

The process of analyzing digital information is highly sensitive, given the risk that evidence could be compromised or destroyed. Certified Media Examiners conduct the analysis, which begins with creating a digital work copy of the device to prevent any contamination of the original data during the investigation.

Examiners use a variety of tools in their investigation, including:

• Isolation chambers to block outside access to wireless devices
• Write-blocking software to prevent tampering
• Extraction software designed to capture specific types of data
• DNA and other forms of trace evidence investigation (such evidence can be digitized in DNA profiles or intermingled with digital evidence in the form of fingerprints on devices, etc.)

Together, these tools are designed to extract evidence and protect it from corruption so the examiner can accurately analyze and assess its value for the case at hand.

What Are the Five Rules of Digital Evidence?

Digital evidence must meet the following five criteria to be considered valid in an investigation:

• Admissible: The evidence is relevant and reliable, not violating federal or state laws or constitutions.
• Authentic: Digital evidence must relate to the case at hand in a clear and relevant way.
• Complete: Evidence must not be one-sided — it should reveal a full picture of the facts and address any potential alternative interpretations.
• Reliable: The evidence must be collected using appropriate means and verified to be true and accurate. For example, you must have a digital transcript certified by a legal transcriptionist to be considered valid in court.some text
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• Believable: An attorney or other presenter must be able to clearly demonstrate the connection between the original digital files and the conclusions they draw.

Reinforce Your Digital Evidence With Rev

Digital evidence is now more central than ever to the legal process — even down to the transcripts of trials themselves. And, given how fleeting and fragile such evidence is, the processes for collecting and analyzing it must be airtight.

Gathering reliable and complete digital evidence requires trained professionals who know how to handle a wide range of sensitive information. But it starts with simple, verifiable methods.

If you need transcripts of courtroom proceedings or video depositions, Rev can help. We provide accurate, secure, and complete transcripts that are proofread and ready for certification — all in a matter of days. It’s just one step in verifying digital evidence, but it’s a significant one.

Get started on your authentic legal transcripts now.