How Lawyers Use Digital Evidence in Court

Web Admin - Tuesday, July 15, 2014

criminal defense digital evidenceThe advent of computer technology has reshaped the way that people communicate with each other, as well as how they treat information. This has created an interesting ripple effect in courts, which now have to deal with lawyers seeking to use digital evidence in court, which includes things like incriminating emails, computer files, and Facebook posts. 

The use of this sort of evidence comes with a variety of hurdles that an attorney must clear. The attorney must prove that the evidence is authentic and untampered with, as well as show that the records are acceptable as testimony. Prosecutors in a criminal case have a higher standard to meet, needing to show that their obtaining the evidence did not violate the defendant's privacy rights.

Hurdles to Using Digital Evidence

Lawyers face three hurdles in using digital evidence: authentication, hearsay, and privacy. Authentication refers to the need to demonstrate that the digital evidence is genuine and that no one fabricated or tampered with it. This is more difficult to show with things like emails than with physical letters because people can easily edit or alter the email's text to change the substance of the message. However, many courts still set a fairly low standard of authenticity for allowing the lawyers to present evidence to the jury; they leave the final determination of genuineness to the jury itself.

The next exception to the use of digital evidence is the rule forbidding “hearsay” testimony, which digital evidence often qualifies as. Hearsay is a statement made outside of a courtroom that the lawyer is attempting to use to prove the truth of whatever the statement is about. For instance, if a defendant is on trial for murder and one witness testifies that another witness told them they had seen the defendant commit the murder, that testimony would be hearsay since the testifying witness is just reciting an out-of-court statement.

Finally, in criminal cases, the prosecution must also show that the police obtained the evidence without violating a person's 4th Amendment rights. In many cases this means that the police must have received a warrant to perform the search, but there are exceptions to this. For instance, in the civil case of Largent v. Reed, the court determined that people do not have a “reasonable expectation of privacy” in regards to the things they post to Facebook, which would mean that a warrant would not be required to look through a person's Facebook profile.

How People Can Protect Themselves

Protecting online and digital information is a difficult prospect. Often, awareness of the public nature of things like Facebook posts, internet searches, and emails can help people stay alert to the fact that such things may be available as evidence in court. This can help modify people's behavior, and make them more careful about the sort of information that they make digitally available. Beyond that, there are some programs that can encrypt private data, but these can often be decrypted throughout the discovery process.

If you are concerned about the use of digital evidence against you in a trial, contact a Barrington criminal defense attorney today. Our firm represents clients across many northwest suburban towns like Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Recent Posts


Buffalo Grove traffic lawyers Arlington Heights Traffic Lawyer Illinois traffic accident lawyer vacation home subcontractor Des Plaines Traffic Lawyer Schaumburg criminal law attorney Arlington Heights car crash attorneys distracted driving accidents Illinois workplace discrimination attorney residential real estate Class A misdemeanor Barrington criminal defense lawyer Arlington Heights lawyer changes to mortgage law Des Plaines insurance attorney IRS Illinois employment law firm Schaumburg estate planning lawyer natural gas explosion IRA trust transfer Joliet general practice lawyers small business Whistleblower Claims wrongful termination, employment law, whistleblower protections, Illinois employment laws, discrimination in the workplace personal injury, auto accident injuries, delayed injuries, serious injuries, Des Plaines personal injury attorneys speeding Rolling Meadows medical malpractice lawyers insurance disputes motorcycle accident lawyer wrongful termination pedestrian accidents spinal cord injury vacation home fines medical malpractice, missed diagnosis, delayed diagnosis, medical mistake, Deer Creek medical malpractice lawyers wills real estate lawyer trucking accident lawyers Palatine injury attorney life insurance claims Barrington personal injury lawyer Illinois lawyer meal breaks estate planning, death tax, succession plans, business estate plans, Barrington estate planning lawyers Illinois registered agent probate Mt Prospect Attorney Arlington Heights traffic attorney Buffalo Grove probate lawyer probate process business litigation Schaumburg personal injury attorney Illinois motorcycle accident lawyer Crystal Lake traffic lawyer Barrington estate planning attorney living trust benefits Illinois insurance claims lawyers commercial real estate Arlington Heights tax lawyer Deer Park traffic accident attorney real estate closing Crystal Lake injury attorney Kenilworth estate planning attorneys defective products estate planning lawyer Inverness real estate attorney Chicago will attorney, social media platforms, Illinois estate planning lawyer, probate fees trauma after an accident Crystal Lake car accident attorney icy parking lots Illinois business lawyer Rolling Meadows boating crash lawyer condo Arlington Heights criminal lawyer Chicago will attorney work unions Schaumburg traffic lawyer texting and driving insurance denial appeals drugs drug possession employee rights personal injury claims medical marijuana Crystal Lake medical malpractice attorneys Rolling Meadows personal injury lawyers Illinois law Long Grove estate planning attorneys employment attorney creditors Schaumburg medical malpractice lawyer Deer Park employment law attorney liability claims civil rights violation power of attorney Crystal Lake employment law attorney foreclosed rental property Riverwoods estate planning lawyer Crystal Lake insurance lawyer loopholes boating under the influence defective products lawyer insurance disputes, Illinois insurance disputes, Illinois insurance dispute attorneys, denied insurance claims, Arlington Heights insurance dispute attorneys Illinois job attorney insurance dispute, insurance dispute lawyers, insurance claim denial, insurance claim delays, Rolling Meadows insurance dispute attorneys Illinois employment laws minimum wage Illinois personal injury attorney Home Remodeling Repair Act Des Plaines accident attorney Des Plaines civil attorney revenge porn Illinois workers compensation lawyer real estate personal injury lawyer new real estate form Chicago employment attorney Illinois civil litigation lawyer dynasty trusts Illinois medical malpractice case wage theft slip and fall accidents Deer Park criminal attorney Palatine traffic lawyer Crystal Lake medical malpractice law firm digital assets, digital fiduciary, estate planning, digital content, Long Grove estate planning lawyers Illinois medical malpractice attorney manufacturing Illinois personal injury lawyers Rolling Meadows insurance dispute lawyers Inverness personal injury attorney corporate law paid sick leave Schaumburg probate attorney real estate leasing jet ski insurance denials Rolling Meadows criminal attorney severance agreements Illinois personal injury lawyer overtime pay TBI advance healthcare directive contracts Arlington Heights employment attorney no contest clauses estate plan Crystal Lake pet attorney underage DUI Arlington Heights personal injury lawyer Crystal Lake employment lawyer Deer Park accident attorney Rolling Meadows tax attorney insurance claim Crystal Lake estate planning lawyer medical research Illinois medical malpractice claim Barrington drug crime attorney traffic violations insurance negligence workers comp college kids Rolling Meadows marijuana attorney Arlington Heights medical malpractice lawyer Illinois injury lawyer denied insurance claims South Barrington real estate lawyer Crystal Lake tax lawyer Palatine trusts lawyer Deer Park real estate law firm hit and run accident Rolling Meadows employment law attorneys Inverness civil lawyer drug crime Inverness elder law lawyer criminal defense Illinois Sales Representative Act insurance attorney insurance claim dispute attorney Illinois rollover accident lawyers clemency deed transfer blended families POA drug crimes denial of life insurance controlled substance independent contractor Deer Park motorcycle accident lawyer traffic tickets Rolling Meadows accident lawyer Rolling Meadows litigation lawyer Long Grove real estate attorney Illinois estate planning Inverness corporate attorney Thanksgiving insurance claim denials Illinois criminal defense attorney Illinois trusts attorney forming a corporation in Illinois Crystal Lake business law attorneys Illinois boating accident lawyer murder charges employment lawyer Policy Cancellation Palatine drug lawyer Illinois corporate lawyer Barrington Traffic Lawyer Des Plaines drug lawyer Chicago car accident lawyer employees preventable medical errors Arlington Heights estate planning attorney sole proprietorship elder abuse job lawyers product liability Landlord Tenant Ordinance golf accidents Illinois speeding lawyer fiduciary rule rollover car crashes pedestrian injuries, pedestrian fatality Illinois Palatine law firm Arlington Heights accident attorney Des Plaines personal injury attorney trust payments insurance dispute Illinois medical malpractice lawyers Chicago lawyer insurance claim delay breathalyzer test medical malpractice compensation Colin Gilbert Super Mario pay when paid contract low-ball insurance settlement BAC Schaumburg estate attorney BAIID Transfer on Death Instrument auto accidents landlord IRA benefits Crystal lake insurance dispute attorney Long Grove wills and trusts attorneys fault based insurance Illinois employment law estate planning trusts Chicago biking tips hands free device nursing home negligence gift taxes civil litigation Illinois insurance claim dispute lawyer estate attorney guardianship attorney IRELA Home Sale Contingencies deadly crashes Schaumburg estate planning attorney head on collisions Deer Park DUI lawyer Barrington employment law firm Arlington Heights personal injury attorney Illinois construction accident attorney Rolling Meadows Illinois Workers’ Compensation Commission taxes Illinois jet ski accident lawyer Des Plaines injury law firm Barrington medical malpractice lawyers Schaumburg drug defense lawyer license reinstatement Illinois car accident attorney traumatic brain injury Schaumburg corporate attorney Des Plaines personal injury lawyers license revocation bicycle accidents Inverness DUI lawyer Palatine Attorney Palatine employment lawyer Buffalo Grove personal injury lawyer Palatine employment attorney hiring employees health insurance dispute LLCs Schaumburg car accident attorney Schaumburg Attorney Mount Prospect real estate lawyer installment contracts DUI defense llinois Real Estate Lawyers Association dealing with problem employees Illinois traffic attorneys Buffalo Grove traffic attorney Crystal Lake will lawyer dram shop law insurance agent negligence gift tax exemption, estate planning, estate planning strategies, Illinois estate planning, South Barrington estate planning attorneys breach of contract Barrington injury attorney surgical mistakes tax attorney DUI penalities traffic crimes startup company Crystal Lake civil litigation lawyer Illinois defective products attorney Illinois elder law attorney insurance claim denial marijuana Deer Park workers compensation lawyer Mount Prospect wills and trusts lawyers Rolling Meadows corporate lawyer Arlington Heights Attorney trustee pet law Arlington Heights wills and trusts attorneys Schaumburg employment law attorneys Crystal Lake medical malpractice lawyer Schaumburg personal injury lawyer Des Plaines medical malpractice attorney spinal cord injuries Schaumburg construction accident lawyer healthcare Illinois attorney operating agreements Chicago insurance law firm pain and suffering car collision Des Plaines real estate attorney Illinois real estate Des Plaines criminal attorney Schaumburg insurance lawyers FMLA Arlington Heights trucking lawyer Illinois Transfer on Death Instrument fiduciary rule delay mortgage Illinois insurance dispute lawyers Des Plaines motorcycle accident attorney Illinois traffic laws Fourth of July Inverness injury lawyer Crystal Lake law firm pizza emoji liability bad faith insurance claims comparative negligence Do Not Resuscitate disability benefits insurance claims South Barrington real estate attorney Rolling Meadows insurance attorney insurance agents Retaliatory Discharge Illinois bicycle safety Deer Park medical malpractice attorney Rolling Meadows personal injury attorney Barrington personal injury attorney agent Schaumburg Illinois employment law attorneys motorcycle accident Arlington Heights wills and trusts lawyer home inspection lawyer Buffalo Grove employment lawyer workers compensation benefits Illinois Probate Act of 1975 Palatine civil attorney medical malpractice claims Long Grove real estate lawyer real estate attorney car crashes Crystal Lake accident attorney Barrington criminal lawyer real estate attorneys estate tax living wills Palatine corporate attorney Illinois red light cameras Liquor Control Act liens products liability Des Plaines drug crimes lawyer Palatine civil litigation lawyer digital information Arlington Heights wills and trusts lawyers Illinois Wage Payment and Collection Act accidental death benefits life insurance policy construction accidents, personal injury, wrongful death, Arlington Heights personal injury attorneys, workers' compensation cell phone tower data privacy insurance dispute attorney rent to own real estate contracts Schaumburg injury lawyer expungement Rolling Meadows estate planning attorney Palatine workers compensation lawyer Kenilworth estate planning attorney Crystal Lake pedestrian accident lawyer Arlington Heights real estate lawyer fatal car accidents insurance claim dispute consent to a search DMV crossover accidents Palatine business attorney Illinois living will employment contract, employment law, employment at-will, Deer Park employment law attorneys, contract, caretaker rights comp time unauthorized overtime Rolling Meadows criminal lawyer Inverness estate planning lawyer Chicago traffic lawyer Inverness accident lawyer medical malpractice Federal Food Drug and Cosmetic Act Rolling Meadows traffic law firm Inverness insurance attorney homestead rights caregiver Illinois DUI attorney Des Plaines personal injury lawyer Employment Discrimination Law murder defense Palatine personal injury lawyer Illinois estate planning law firm texting while driving unpaid assessment employee misclassification ACA Des Plaines pet law attorney School Visitation Rights Act trench injuries attorney fees GM ignition switches uninsured motorist unpaid overtime Buffalo Grove criminal defense lawyer Chicago employment lawyer internet Rolling Meadows traffic attorney digital media accounts, estate planning, Arlington Heights estate planning attorney, employee discrimination Palatine construction attorney Illinois pet lawyer personal injury attorney Illinois traffic attorney car accident lawyers owner responsibility food poisoning Illinois business law atorneys Crystal Lake car accident lawyer Attorney Ken Apicella DNR Buffalo Grove corporate attorney Rolling Meadows insurance dispute lawyers, insurance dispute digital evidence employment law, meal breaks, rest breaks, hotel employees, Des Plaines employment law attorneys Chicago corporate attorney federal regulations for LLCs preventing accidents landlord tenant law Illinois mortgages Inverness traffic law firm BUI Barrington civil litigation attorney financial advisors traffic offenses employment law Des Plaines tax law firm sexual harassment Arlington Heights TBI attorney Chicago estate planning Palatine estate planning lawyer Illinois personal injury FSLA Buffalo Grove law firm Self-Directed IRA Accounts jet ski accidents Crystal Lake bike accident lawyer Kenilworth estate planning lawyer Family Medical Leave Act Rolling Meadows insurance lawyer involuntary manslaughter Barrington business law firm rollover accidents dog bites in terrorem provision Illinois insurance lawyer Illinois Smoke Detector Act DGAA Rolling Meadows business lawyer field sobriety test Illinois employee rights attorney. Illinois pedestrian accident attorney bicycle dooring accidents unfunded trust denied insurance claim Illinois real estate lawyer license condo association Illinois insurance disputes estate planning, digital assets, Revised Uniform Fiduciary Access to Digital Assets Act, Illinois digital assets, Illinois estate planning, Rolling Meadows Attorney Illinois employment law attorney DUI Des Plaines anesthesia errors Inverness real estate lawyer Schaumburg elder law lawyer Des Plaines real estate lawyer Schaumburg real estate lawyer trusts rest breaks income distribution deducation capital gains tax brain injury distracted driving accident victims Rolling Meadows DUI lawyer pet bites Schaumburg wrongful death attorney Illinois will lawyer probate claims process employment law, Illinois employment laws Rolling Meadows probate lawyer boating accidents traffic violations defense life insurance lawyer Chicago insurance claim attorneys Des Plaines DUI attorney estate planning attorney rumble strips Des Plaines claims law firm Detainer Actions license suspension investment property Illinois traffic ticket lawyer construction accidents Palatine employment law lawyer commercial leasing Crystal Lake personal injury lawyer CAM Deer Park personal injury lawyer Long Grove estate planning attorney marijuana crimes attorney loss of consortium right to work premises liability special needs trust Illinois driving without license foreclosure construction contracts Rolling Meadows drug defense attorney Illinois probate lawyer car accident Forcible Entry drug crimes lawyer Legal Info overtime violations Arlington Heights pedestrian accidents Illinois tax attorney holiday statistics sexual images living trust vs will medication errors Rolling Meadows employment law attorney elder law civil litigation attorney whistleblower protections boating DUI workplace sexual harassment drunk driving statistics modern family estate planning Illinois workplace lawyer Arlington Heights wills and trusts attorney employment contract Illinois small business Arlington Heights employment law attorneys Crystal Lake criminal defense attorney Schaumburg criminal attorney Illinois estate planning attorney commercial leases swimming pools Inverness probate lawyer truck collisions Palatine elder law attorney Crystal Lake personal injury attorney Colin H. Gilbert Buffalo Grove injury lawyer estate planning Schaumburg civil litigation attorney Barrington estate planning lawyer problem employees eluding a police officer Affordable Care Act Buffalo Grove real estate attorney car crash slip and fall Crystal Lake employment attorney probate claims Chicago trucking accident attorney Illinois employment lawyer Arlington Heights car accident lawyer irrevocable trust personal injury claim Illinois wills and trusts attorneys criminal record institutional trustee Barrington workers compensation attorney DUI attorney insurance adjusters Palatine probate lawyer Barrington boating accident attorney healthcare claims Illinois insurance attorney Illinois collections attorney Rolling Meadows personal injury lawyer ken apicella Palatine real estate lawyer Palatine corporate law attorneys Palatine punch death cell phone Deer Park traffic lawyer PTSD traffic accidents estate planning for college students bike accident Illinois employment attorneys digital assets back injuries wills and trusts personal injury workers compensation appealing an insurance claim Illinois insurance claim attorney Illinois home inspection Chicago attorney murder Illinois wrongful termination lawyer compensatory time Chicago estate planning lawyer Illinois wills and trusts Fair Labor Standards Act car crash injuries Long Grove estate planning Palatine traffic accidents criminal law wrongful death Mount Prospect elder law attorney Schaumburg employment attorney first degree murder Barrington Illinois estate planning lawyer pedestrian-automobile accident Barrington employment law attorney suspended license natural gas Barrington employment attorney Buffalo Grove personal injury attorney Barrington real estate lawyer traumatic brain injuries mass shooting filing a medical malpractice claim Rolling Meadows employment attorney Des Plaines collections attorney Exclusions pedestrian accident criminal underfunded trust driving Illinois LLC creation cell phone accidents ObamaCare federal crimes Rolling Meadows Traffic Lawyer Buffalo Grove car accident lawyer automated cars traffic laws Rolling Meadows real estate attorney living trust blood alcohol content Palatine insurance lawyer Schaumburg personal injury lawyers Barrington attorney real estate zoning Food and Drug Administration's Food Safety Modernization Act underinsured motorist Arlington Heights injury attorney Illinois workers compensation attorney real estate contract car accident lawyer power of attorney for healthcare life insurance privacy laws drunk driving senior citizens Arlington Heights insurance attorney traffic deaths personal injury accidents Illinois Human Rights Act trucking accidents social media after death Crystal Lake traffic attorney Rolling Meadows car accident lawyers Barrington litigation attorney Jay Andrew child safety Illinois trucking safety pregnant women probate lawyer personal injury law firm car accidents Illinois insurance claim dispute lawyers Buffalo Grove insurance claim dispute lawyers Palatine criminal defense lawyer reckless homicide Buffalo Grove medical malpractice lawyers