Theory and Practice of the Use of Digital Evidence in Polish Criminal Court Proceedings

Hello, my name is Piotr Lewulis and I am Assistant Professor at the Faculty of Law and Administration at the University of Warsaw and in today’s short presentation I will talk briefly about how the theory of digital evidence collides with the actual judicial practice in Poland.

So, based on the generally accepted definition of digital evidence and based on the existing forensic standards, all materials of digital origin should be gathered, examined and assessed in accordance with the basic forensic guidelines, designed to maintain the credibility of evidence. In Polish criminal proceedings, legally speaking, digital evidence belong to the category of physical evidence. This is quite typical in itself and there are no formal restrictions, no formal guidelines, no legal guidelines to their use.

It is generally accepted, and expected, that any evidence is assessed in accordance with the indications of the underlying scientific principles. In case of digital evidence, that would be digital forensics. However, following strict standards of digital forensics may be difficult, costly and time consuming, and, given the popularity of digital content in many contemporary criminal proceedings, it may be hypothesised that often such materials are not preserved and presented in a forensically sound manner.

To test such a hypothesis, I have conducted an empirical study that involved an analysis of all these criminal cases. The analysis included cases of technically sophisticated so-called cyber crimes, as well as ordinary crimes, such as simple fraud, copyright infringements and hate speech.

All these were legally concluded between 2016 and 2018, and they were analysed in 2019 in the first half of the year. In the analysed cases, various types of digital content was present. Popularly used digital materials included open source information, for example, from social media and other open websites, emails, as well as various types of information received from internal data processing systems from various business entities.

In over 68% of the analysed cases, evidence of broadly understood digital origin were present. However, only in a minority of those cases, the evidence was collected as data in a forensically, technically sound manner. In most cases, materials of digital origin were presented as printouts only, and they were not analysed technically. They were not analysed forensically at all.

Well, criminal courts in Poland very rarely seek help of forensic IT experts, and often rely on simple printouts to assess digital evidence. This often goes unchallenged, as the parties to the proceedings very rarely raise doubts as to the credibility or authenticity of digital evidence.

Even if such evidence is questioned, in none of the analysed cases the court deemed such evidence inadmissible or uncredible. This does not mean that the digital evidence in Poland are generally false or uncredible. However, it seems that the principles of digital forensics in Poland do not seem to play an important role in current judicial practice. Thank you very much for listening.

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