Currently, technology is very present in our lives, so that more and more, computer-based evidence is part of everyday life in the judicial field. One of the most common cases is the accreditation or challenge of facts through audio recordings, in which it is sought to determine the origin, authenticity and integrity of the same.
Nowaday, audio recordings are available to everyone. Any mobile phone allows you to make an audio recording, which is very useful, by showing facts in an irrevocable way. But, we must bear in mind that an audio recording, given its nature, can be manipulated, so its mere hearing is not enough to prove its authenticity and integrity, being this objectionable, when added to the cause by mere transcription or collation by notary public.
As it is indicated in the Supreme Court Judgment 300/2015, May 19th , 2015 the proof of facts by means of audio recordings “… is approached with all caution by the courts of justice. The challenge of the same displaces the burden of proof on those who intend to take advantage of their probative suitability. In such a case, the practice of an expert evidence will be essential … “.
The most frequent types of orders are:
“… considering that there is an error in the evaluation of the evidence, since it is understood that the test carried out has not been correctly evaluated, since it has been based on a recording provided by the complainant. This recording was downloaded to his computer with the help of a friend, and later transferred to CD. Therefore, it is not certain that the recording has not been modified.“
“The appeal is based on the fact that the recording provided at the hearing proves that it could have been manipulated by the complainant.“
“The defendant attended the trial, assisted by a lawyer. Thus, the proceedings could have been accessed at all times prior to the hearing. Being able, in his case, to have challenged said recording, in order to have expert evidence, for verification or not, of the authorship by his client of the facts that were imputed to him. The judgment of Chamber II of the Supreme Court number 300/2015, May 19th, 2015, analyzes the question of the possibility of manipulating this type of evidence, concluding that this would imply the need to practice expert evidence, if it is contested, shifting the burden of proof to the party that intends to assert it. In this sentence, a detailed argument is made on the subject.”
“To this must be added the audio and video evidence practiced on the day of the oral hearing, although it was contested by the Defendant’s Defense for not having been subjected to technical expertise, both the copies of the WhatsApp, audio files and video, however the Chamber valued them in their fair measure.”
“The appealed ruling is essentially based on the ineffective and invalid expert evidence that has been provided as the only justification for the facts imputed in the letter of dismissal to the plaintiff, for several reasons explained by the Magistrate of Instance in her ruling. The first is because she understands that the expert presented by the company lacks an official degree in computer science, although at this point it is recognized that the expert is the person who provides computer assistance to the company as a freelancer, which implies at least a practical knowledge of what he is hired for. On the other hand, the informal nature of the expert evidence and the questioning of the chain of custody are argued. Special mention is also made of the breach of the guarantees of the plaintiff’s right to privacy at the time of carrying out the inspection and search of the computer equipment, declaring it proven that the plaintiff was not present. In short, the Magistrate of Instance, evaluating this evidence and the testimonies provided at the oral trial concludes that the defects in the practice of the expert evidence carried out by the company prevent granting probative value to this means of proof, and given that it is essential to prove the facts imputed to the plaintiff, declares the dismissal unjustified.”
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