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What is Electronic Evidence?
Electronic evidence is any electronically stored information (ESI) which may be used as evidence in a lawsuit or trial. Electronic evidence includes any documents, emails, or other files that are electronically stored. Additionally, electronic evidence includes records stored by network or internet service providers.
Which Laws Govern Electronic Evidence?
There are two sources of law which govern the collection of electronic evidence:
- The Fourth Amendment --
- Searches with a warrant--Under the fourth amendment, the police may seize and search your computer if they have a valid search warrant to do so. A valid search warrant allows them to take your personal computer and search it as if they had confiscated actual paper files or documents.
- Searches without a warrant-- The police may search your computer for incriminating evidence in some cases where they do not have a search warrant to do so. These warrantless searches are constitutional when there is no reasonable expectation of privacy or when one of the several exceptions to the warrant requirement exist.
- Statutory Privacy Laws -- Various Federal laws regulate how and when electronic evidence may be collected.
- Electronic Communications Privacy Act -- The ECPA regulates how police can obtain stored account records from network service providers, internet service providers (ISP's), telephone companies, cell phone service providers, and satellite service providers. The ECPA also limits how electronic surveillance may be conducted.
- Patriot Act -- The Patriot Act expands the power of the police to collect electronic evidence. It eased the restrictions placed on investigators and allows police to more easily access ESI.
How can Electronic Evidence be Used Against me?
Electronic evidence can be used by prosecutors to help establish the elements of the crime you are being charged with. Emails or saved instant messenging conversations may be incriminating. Internet browser histories may be used to show that you researched topics associated with the crime. Word processing or spreadsheet documents may be used to show elements of various white collar crimes. Digital photos or movies may also be uses as evidence of your involvement in a crime. In short, electronic evidence may be used against you in the same ways as traditional tangible evidence.
Do I Need an Attorney If the Police Have Seized Electronic Evidence?
Yes. If the police have seized evidence to be used against you, it is very important that you contact a criminal defense attorney immediately. Your lawyer will be able to help you defend yourself against any charges that may be brought. Your lawyer will also be able to make sure that your rights were not violated in the search and seizure of electronic evidence. Additionally, a lawyer will be able to help you determine if any additional electronic evidence will need to be turned over during the pre-trial discovery phase.
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Last Modified: 10-25-2012 04:22 PM PDT
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