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


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