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 digital video recordings, in which it is sought to determine the origin, authenticity and integrity of the same.
Nowadays, video recordings are available to everyone. Any mobile phone allows you to make a video recording, which is very useful, by showing facts in an irrevocable way. But, we must bear in mind that a video recording, given its nature, can be manipulated, which is why its mere hearing and viewing is not enough to prove its authenticity and integrity, being this objectionable, when added to the case 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 digital video 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:
“The viewing of the video provided by the private prosecution does not provide any corroboration of the complainant’s version. It has been expressly contested by the defense. It is a video that does not meet the requirements established in the Supreme Court Sentence 300/2015, since it has not been noticed by an expert test that proves its authenticity and integrity. It is an edited video, that is, it has been cut and mounted, it is not a complete and continuous video, but a selection of the most relevant images …”
“The defence states that this recording is not valid because it is not original, but a copy made by the “mossos” which the complainant gave them; that the events occurred on the 13th and the DVD with the images was not presented to the court until 50 days later, and during that time it could have been manipulated; that the full recordings have not been provided but only one hour, and may have been cut; and that there is no expert attesting that the images are from the 13th and not from another day. “
“And as to the lack of an expertise report on the authenticity of the recording, the truth is that, having not been contested in the entire case, such an expertise report is meaningless, and in any case if the party intended to challenge it, they, themselves, should present or propose evidence in this regard, which they have never done.“
“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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