Collecting evidence while investigating computer crimes
Date: April 09, 2004Source: Computer Crime Research Center
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The suggestion to grant criminal defense lawyers the right to collect evidence on their own, aroused a hot discussion among scientists, especially in cases of investigating computer crimes.
The investigator cannot be entirely objective in collecting evidence. According to existing experience of estimating the quality of his work, termination of criminal case is regarded to be an absolute failure and incriminated to the investigator.
Ukrainian experience has shown that judges often exclude some counts or episodes of accusation, change the qualification of activities according to an article of the Criminal Code that provides for less serious offence.
A reason why the defense lawyer fails to collect evidence of defense and prosecution with the same indifference lies in the very specific of this work. Investigator always communicates with criminals. The investigator while overcoming such difficulties as lie, craft and hypocrisy always creates a corresponding stereotype of a criminal.
It is necessary to support the opinion of some scientists that recommend adding a new opportunity to the existing law. This opportunity will allow carrying out a parallel investigation on establishing the facts that discharge the accused with giving verdict of non-guilty and taking to court along with the criminal case.
According to the Criminal Code of the Russian Federation, the criminal defense lawyer has the right to "collect and supply evidence necessary for legal assistance", since he/she has been allowed to work on a criminal case. The criminal defense lawyer has the right to collect evidence through:
1) obtaining subjects, documents and other data^;
2) interrogating persons with their consent^;
3) demanding and obtaining references, descriptions and other documents from state authorities, local government bodies, public funds or organizations that are obliged to provide requested documents or their copies.
As for control over the criminal defense lawyer's activity, for example, a private detective's activity involves gathering data on criminal cases on a contract basis with the participants of the proceeding. In a day from the moment of concluding a contract with a client on collecting evidence on criminal cases, a private detective should inform in writing the person that prosecutes an inquiry, investigator, attorney or the court that instigated a proceeding about it.
It is suggested to introduce a search as a special operation in the process of investigating computer crimes. It is often necessary to collect and examine significant volumes of information:
- analyze a significant amount of documents^;
- question many persons^;
- obtain information stored both in personal computers and in computer networks^;
- deposit a great many material evidence in some cases.
The search is a large-scale investigative activity, which is sometimes carried out under difficult conditions. Therein, it is recommended to carry it out as a special operation that demands more significant efforts and it is necessary to involve a lot more of specialists and officers than in any traditional operational investigative group compounded of one investigator(rarely of two or three investigators), several operating officers, one-two specialists.
In order to have a more objective result, it is necessary to involve the following experts in the special operation:
1) investigators;
2) operating officers;
3) experts;
4) guards;
5) attorney;
6) persons, subject to a personal search;
7) adults related to #6;
8) criminal defense lawyer and advocate;
9) guards of private guard companies, bodyguards and other persons rendering guard's services.
The Ukrainian legislator does not grant the criminal defense lawyer the right to collect evidence and only says that the last may produce evidence in the court. Owing to absence of the law on private detective activity, any person (a client) forfeits a right to collect necessary evidence on a contract basis, for example information on his/her alibi.
Therefore, an adversarial principle in criminal proceedings of Ukraine is absent. There is no mechanism of its regulation in pre-trial and after-trial consideration, no determined circle of persons or subjects that may participate in the criminal proceedings. An introduction of new methods of carrying out investigative actions (special operations), especially in cases of such non-obvious by modus operandi crimes as computer crimes are, demands a legislative definition of the limits and the power of activities for each operating subject.
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