The Criminal Probative Force Of The Electronic Data

As a new form of criminal evidence, electronic data, abbreviated as ED in the following part, was officially included in the scope of legal evidence in our revised Criminal Procedure Law. Relevant judicial interpretations make a number of general provisions for the criminal probative force of ED in such aspects as evidence collection procedures and specifications. Based on author’s work experience, this paper will be carried out in comparative study and historical research methods. It will discuss relevant interpretations and influencing factors for probative force of ED from the perspective of probative force of ED; it will explore how to improve the probative force of ED, providing references for law makers to legislate and improve the law system.ED refers to the materials which can prove the fact of case; they form and exist based on electronic techniques (including computer applications, communications and modern management techniques). In addition to objectivity, relevance and legitimacy that the general evidence possesses, it also has the characteristics of high-tech and vulnerability. Investigations on criminal probative force of ED must be based on the evidence value, and give full consideration to its own inherent properties which are different from other evidences. The United States has the most advanced applications of ED and has established a strict verification system to ensure the criminal probative force of ED. In the US, the hearsay evidence rule and the best evidence rule under its evidence theoretical system have been accommodated and reinforced in the field of ED. In China, before the legalization of electronic data, criminal probative force mainly functions based on other forms of evidence, such as audio-visual materials, or other documentary evidence.At present, the main factors influencing criminal probative force in China are as follows, subject factor, the reliability of evidence and the relevancy of evidence. Laws in China prescribes several types of subjects relevant to ED; according to their status in the proceedings, the degree of relevancy with the case, technology level and their own cognitive differences, criminal probative force of obtained ED varies. ED forms by electronic devices in accordance with certain pre-set programs, and then are collected and extracted by law enforcement officers. Equipment reliability and the compliance of the officer’s operation procedures are also factors affecting reliability. Finally, by examining the extent to which electronic data can prove the fact of the case, the degree of ED relevancy is obtained, then the degree of criminal probative force of ED is inferred.The common ED in judicial practice is as follows:browser history, computer registry information, instant messaging software, e-mail and cell phone electronic data. For different types of criminal cases, the above ED plays proof role in the field of case fact. In the future, with the rapid development of computer information technology and network communication technology, growing network criminal situation, people’s urgent requirements and China’s socialist legalization process all bring severe challenges to the criminal probative force of ED. Meanwhile, the enhancement of ED’s criminal probative force becomes possible as forensic research deepens and data collection means develop. Combined with relevant judicial practice, the author believes that the following aspects should be improved and enhanced. First of all, the judiciary staff should play an active role. Relevant departments needs to introduce more talents, cultivate existing talents, and popularize electronic data knowledge. We should keep pace with the times. Second, we need to speed up the legal system construction and theoretical system construction and establish judgment principles as far as possible for the probative force of ED to guide the criminal trial. For special cases, specific applications and the degree of criminal probative force of ED should be prescribed directly, such as expert assistance, data recovery and secret investigation. A set of highly operational ED job specification should also be established. For different types of criminal cases, judicial staff needs to work with emphasis, follow uniform standards, and implement accountability system. Third, technology innovation should be encouraged. In China, forensic research on ED starts late. Therefore, in core technology field, there exists a certain gap between China and European and American countries, the introduction of technology must take a combination of independent research and development to realize automation and intelligentization of ED collection. We need to take countermeasures against anti-forensic software, encryption software, computer memory and cell phone collection research.