Computer evidence can be acquired in court even without guarantee of its authenticity

Computer evidence can be acquired in court even without guarantee of its authenticity

(Brescia Tribunal, 30 July 2019)

The judgment of the Brescia Court, which concerns a dismissal for theft of products owned by the employer company, offers the opportunity to make some reflections on the subject of “computer” evidence. In the case, in order to demonstrate theft of goods, the employer had brought to court some videos taken from the video surveillance system. They were contested by the worker who claimed that they did not constitute valid evidence on authenticity grounds, as they were extracted from cameras – and then produced in court – without the adoption of a suitable procedure to ensure compliance with the originals. The complaints were based on the provisions of articles 247, co. 1 bis, e254 bis cod. proc. pen. – which pertain to the search and seizure of IT material – pursuant to which copies of the IT documents can be acquired by the investigating bodies only through methods that exclude their alteration. It was therefore argued that the same rules should also apply to the IT test in the work process and that, in this case, the video files produced had no guarantee of authenticity as they lack the so-called “hash code”. On the subject and in relation to the criminal trial, it should be noted that the Court of Cassation has established that copies of electronic documents (e.g. video file, audio etc.) must be extracted in ways that confirm their identity with the original as well as its modifiability. In other words, an “image copy” (also called “forensic copy”) must be created which reproduces the duplicate data in the same conditions in which it was at the time of its acquisition (see Cass. Pen, section un., 20 40963 of July 2017; Criminal Cassation, 53810 of 31 October 2017). Based on these principles, they were deemed regularly acquired in the criminal trial, e.g. copies of audio files of a telephone interception accompanied by the relative “hash codes” which consist of alphanumeric sequences representative of the original files and their copies (Criminal Cassation, 10 May 2019, n. 38009). In its decision, the Court of Brescia has, however, ruled out that the “computerized” evidence in a civil venue must have the aforementioned characteristics and, vice versa, considering that an IT document (e.g. a video) could also be acquired in court without the guarantee of its correspondence to the original. However, the same document can be confirmed and / or corroborated by other evidentiary elements, such as testimonial declarations. The aforesaid concepts have been expressed in other judgments, which have emphasized that the acquisition of computerized evidence is subject to different rules depending on whether it is a criminal trial or a civil trial. In fact, in the civil (and in particular labour) process, an IT document produced even without the respective “forensic copy” can be freely acquired by the judge who will be able to assess its reliability through other investigative means, such as and among others, testimonial evidence (Milan Tribunal, 9 March 2017, no. 709).

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