THE PANORAMA OF CHAIN OF CUSTODY AND ITS IMPLICATIONS FOR THE VALUATION OF DIGITAL EVIDENCE IN CIVIL PROCEEDINGS

Abstract

The transition of social interactions to the virtual environment, coupled with the growing adaptation of legal professionals to new technologies, has led to a rapid change in the traditional paradigm of documentary evidence, which has lasted for centuries. This transformation involves the exchange of paper documents for electronic or digital ones to record legally relevant information. The adoption of this new form of evidence, known as digital evidence, has generated fervent debate among scholars and jurists, especially due to the remarkable instability of data stored electronically or digitally. The certainty that digital evidence faithfully reproduces the fact it is intended to prove is linked to the demonstration of its intrinsic requirements of authenticity and integrity, as well as the consideration of its extrinsic requirement, known as chain of custody. This institute is intricate and composite, especially when analyzed within the framework of “access to and development of justice”. This chain of custody is crucial to guaranteeing the integrity and authenticity of digital evidence; however, its relevance goes beyond mere admissibility, affecting the evaluation of evidence and, consequently, access to and progress of justice. The aim of this article is to analyze the legal and procedural consequences of non-compliance with the chain of custody of digital evidence in civil proceedings. Through bibliographical and documentary research, we sought to answer whether digital evidence obtained without observing the chain of custody should be inadmissible or considered null and void in civil proceedings. Unlike criminal proceedings, in which the chain of custody is considered a legal requirement for the admissibility of digital evidence, the non-observance of which results in its exclusion from criminal proceedings, in civil proceedings this extrinsic requirement does not prevent the analysis of its authenticity and integrity in accordance with the rules of dynamic distribution of the burden of proof. It can be concluded that in civil proceedings there is not the same technical-scientific rigor as in criminal proceedings, and the judge, faced with digital evidence produced by the parties, even without respecting the technical aspects of the chain of custody, can value it by considering other elements in the case file and, based on them, attribute the reliability and credibility it deserves.