Verification of the Legality and Reliability of Electronic Evidence in an Adversarial Criminal Trial

Abstract

The article concerns the issue of verifying the legality of obtaining electronic evidence in criminal proceedings and verifying the reliability of the information recorded with it. The problem is particularly important when the evidence is obtained during secret police operation. The article draws attention to the lack of real possibilities of verifying such evidence by the accused and his/ her defense attorney and the often great difficulties encountered by the court. The secrecy of the methods of operation of the police services, justified by the need to ensure their effectiveness in detecting and combating crime, poses tasks that are difficult for trial participants to solve in practice. These difficulties relate to the assessment of the legality of the activities which have resulted in the obtaining of certain material, the burden of proof in this respect and the assessment of whether the obtained material is original or has not been intentionally manipulated. The article concludes with postulates to intensify the system of training for judges, to establish the rule that the material provided by police services, the origin of which cannot be verified due to the refusal to provide information, cannot constitute evidence in the case and to consider the establishment of an institution of a representative independent of the parties who would be entitled to all information regarding the circumstances of obtaining evidence and obliged to raise objections to the court regarding the admissibility of evidence in the event of irregularities identified by him/her.