Forensic study of the authenticity of WhatsApp messages

Nowadays, 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 WhatsApp messages, in which they seek to determine their origin, authenticity and integrity.

It is very common, to commit the temerity, to present a WhatsApp message printed on paper as evidence in a judicial proceeding. In this case, the evidence is rebuttable since digital images, given their nature, may be manipulated, and their mere printed presentation is not enough to prove their origin, authenticity and integrity.

As it is indicated in the Supreme Court Judgment 300/2015, May 19th, 2015 the proof of facts by means of WhatsApp messages “… 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 … “

Some interesting judgements

The Judgment of the Supreme Court conditions the need for an expert opinion to the challenge of the authenticity of the messages by the Defense, which does not occur in the present case, since neither in the brief of provisional conclusions, nor as a preliminary question of the oral trial, the Defense challenged the authenticity of the messages, which is why an expert opinion cannot be required from the accusations where there was no challenge, and it must also be taken into account that the Defense itself proposed that documentation as evidence in its brief of provisional conclusions.

“Now, of course, the expert report only makes sense when the messages are contested. If the defense of the accused admits the remission of the messages, such admission allows them to be authentic.

Considerations

This type of evidence can be contested and therefore, rejected, ruining the entire procedure. To determine whether this type of evidence can display probative value, the forensic analysis of a certified computer expert is essential.
 
Likewise, we must bear in mind that in recent years, the number of works and computer expert opinions that are dismissed in litigation and are not taken into account at the time of sentencing. The reason is none other than a huge increase in the number of computer experts who are not legally authorized to act before the courts, and who therefore incur in the crime of professional intrusion. We can find a clear example in the Judgment of the Superior Court of Justice of Madrid 531/2017, Social Chamber, Section 4, July 19th , 2017, in which it is stated in the first point of the grounds of law, that:

“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.”

The computer test must be certified in a computer expert opinion, prepared by a legally qualified computer expert. In our Frequently Asked Questions section you can find more information about it.

Why hire our services?

From FORENSICTECH we provide our clients with the security of having:

  • A computer expert specialized in your case, collegiate and legally authorized to act in the Spanish courts of justice.
  • Appropriate instruments and specialized software to develop your expert report.
  • Legally recognized chain of custody investigation and assurance methods.
  • An effective and efficient work in the requested expert report.
  • A certified computer expert opinion, which greatly increases your credibility and reliability before judicial bodies, as it is endorsed by a professional association.
  • A computer expert capable of facing the ratification in oral proceedings in all jurisdictional orders.
  • Our performance in all the courts of justice throughout Spain in all jurisdictional areas.

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