The admissibility of protocols of covert investigative (detective) activities with annexes containing information in digital form for the purposes of obtaining court evidence

Abstract

This article examines the admissibility of protocols of covert investigative (search) operations with appendices containing information in digital form in the process of forming judicial evidence. It is argued that the specific nature of the legal regulation of covert investigative (search) operations, the procedure for their conduct and the methods of recording results significantly complicates the verification of the admissibility of the relevant information, particularly in cases involving the use of audio and video recordings, electronic data, computer storage media and other digital materials.
It has been shown that the admissibility of such evidence depends not only on compliance with the general requirements of criminal procedure law, but also on proper technical verification of its integrity and authenticity. The study analyses the legal basis for conducting digital forensics, the requirements for protocols and their annexes, as well as typical shortcomings in documentation that may call into question the admissibility of the evidence obtained. Particular attention is paid to the importance of the “chain of custody”, the hashing procedure, metadata verification, and the ability to detect tampering, modification or other interference with digital files. It is emphasised that the admissibility of such materials must be determined in adversarial court proceedings, taking into account the defence’s right to verify compliance with the procedural rules governing their acquisition.
The paper emphasises that the mere formal existence of an NSRD protocol and the digital media attached to it is not sufficient for the relevant information to be recognised as admissible evidence. It is argued that the assessment of such materials requires a combination of procedural and legal analysis with an examination of the technical characteristics of the digital information, which make it possible to establish its origin, integrity and the absence of external interference. It is concluded that the admissibility of NSRD protocols with digital attachments is determined by a combination of procedural and technological criteria. This requires verification of the legality of the grounds for conducting NSRD, compliance with the rules for recording and storing digital information, establishing its immutability and authenticity of origin, as well as the use of the specialist knowledge of experts and specialists in court proceedings. It has been demonstrated that only a comprehensive consideration of these requirements allows the information obtained as a result of NSD to be recognised as a valid evidential basis in criminal proceedings.