The "king of evidence" electronic evidence as an independent type of legal evidence, in line with people's psychological expectations, but also conducive to the formation of a relatively complete theoretical system and technical system, in order to provide better theoretical and technical support for the era of electronic evidence.

However, at present, electronic evidence is actually divided into three legal evidence subcategories: "audio-visual material" evidence, "electronic data" evidence and electronic material evidence in material evidence. In addition, there are also some electronic evidence, such as electromagnetic wave signals illegally emitted by pseudo base stations for transmitting spam messages, which belong to the nature of key crime tools, but there is no legal evidence type that can be clearly attributed.

From this point of view, the existing classification of legal evidence still needs to be improved.

1. Breakthrough to "Electronic Data"

In 1996, "audio-visual" evidence officially became a legal type of evidence. In the following 10 years, in order to take the electronic evidence shown in Figure 2-2 as the type of legal evidence juxtaposed with physical evidence, people carried out a lot of theoretical research and fierce academic debates, and finally found that:(1) The electronic evidence of tools/items shown in Figure 1(a) can be classified into the category of physical evidence;(2) The trace-type electronic evidence shown in Figure 1 (B) mainly uses the information content expressed in the electronic data stored therein as evidence, and this process involves ideological logical judgment and logical transformation, which is not in the material evidence that emphasizes the use of "objective existence" as the material of proof.
 

Therefore, the electronic data stored in the electronic storage medium as shown in Figure 1 (B) is selected as the representative of the (remaining) electronic evidence, with the information content (expressed by the electronic data) as the difference, in the classification of legal evidence in the name of "electronic data" and physical evidence, and formally entered the law in 2012.

Deficiencies in the name of 2. "electronic data"

The term "electronic data" originates from the field of information technology and has no judicial characteristics of its own. In order to avoid misunderstanding, the term "electronic data evidence" or "electronic data" evidence is often used as the name of the type of evidence. In the theoretical research and practical use after 2012, it is found that the name of "electronic data" has obvious shortcomings, such:

(1) Inappropriate coverage. For example: ① traditional evidence in electronic form, such as digital photos of fingerprints, scanned or digital photos of paper contracts, electronic inspection records, etc., are all in the form of electronic data, but do not belong to authentic electronic evidence in people's minds; ② the name of "electronic data" naturally contains the concept of digitization and cannot cover trace electronic evidence in analog form; ③ At present, the evidence of "audio-visual materials" is basically in the form of electronic data, and the electronic evidence extracted in the name of "electronic data" evidence is also in the form of "audio-visual materials", that is to say, there is overlap between the evidence of "audio-visual materials" and the evidence of "electronic data"; and so on.

(2) Conceptual confusion, such as: ① electronic data, electronic signals representing electronic data and the physical carrier of electronic signals representing electronic data belong to different concepts, but they actually play a role of proof together; ② electronic data, the information content expressed by electronic data and the information content contained in the information content expressed by electronic data belong to different concepts, but they actually play a role of proof together; ③ The operation process/result of electronic data, program code expressed by electronic data and program code expressed by electronic data belong to different concepts, but they actually play a joint role of proof; and so on.

(3) The actions of the perpetrator directly lead to changes in the existence of the substance and cannot directly generate electronic data. This means that between the electronic data and the criminal act to be proved, there must be a layer of physical evidence formed by the objective existence and function of the substance; moreover, in this layer of physical evidence, there are both non-electronic physical evidence and electronic physical evidence (or electronic physical evidence components). In other words, electronic data is not the most primitive and vivid electronic evidence, but a subcategory of electronic evidence.

(4) Electronic data, both stored state electronic data, and transmission state electronic data, and most of the stored state electronic data belong to the conversion results of transmission state electronic data, they should be objectively and fairly included in the "law eye. However, in order to bring the transmitted state electronic data into the "legal eye", it needs to be supported by the concept of electronic signal, otherwise it is impossible to scientifically, objectively and reasonably prove the source and authenticity of the transmitted state electronic data. In other words, electronic data needs to be at least juxtaposed with electronic signals as a subcategory in electronic evidence.

(5) The electronic storage medium as an electronic data carrier cannot independently generate electronic data that can be used as court evidence; that is to say, it is necessary to include the electronic equipment, electronic storage medium, electronic transmission medium and electronic signal involved in the formation of electronic data used as court evidence into the "legal eye", Only in this way can the authenticity and legality of electronic data used as court evidence be objectively and scientifically proved.

(6) There is a difficulty of attribution in the jurisprudential classification, I .e., in the dichotomous jurisprudential classification of evidence, there is a distinction between physical evidence and verbal evidence. "Electronic data" evidence clearly does not belong to verbal evidence; however, the original meaning of the term "electronic data" refers to the information content of the corresponding representation of digital electronic signals, which is not fully compatible with the concept of physical evidence.

From this point of view, whether "electronic data" is suitable as the name of the type of legal evidence is also worth exploring in theory.

3. material basis that is difficult to bypass

The many shortcomings of the name "electronic data", especially the actual situation in the process of the formation of "electronic data" evidence and the role of proof, prompt people to reflect on the rationality of the information content (expressed by electronic data).

In fact, the world is material, and criminal acts first lead to changes in the existence of materials, rather than directly generating electronic data and information. Electronic data and information will only appear after "changes in the existence of materials" are converted into electronic signal forms by relevant electronic equipment and processed logically. At the same time, the materials used as evidence in court must also be material, it is also required to be in a form that can be accessed at any time. This means that it is difficult for electronic data and information used as evidence in court to completely bypass the physical evidence that is its material basis.

In fact, the historical origin of the concept of electronic equipment and electronic evidence determines that there must be an indissoluble bond between electronic evidence and physical evidence. Therefore, when referring to electronic evidence, we directly think of "electronic data" evidence, think that "electronic data" evidence is synonymous or synonymous with electronic evidence, and think that electronic evidence is short for "electronic data" evidence. Such phenomena and academic views are somewhat inappropriate. In other words, since the mid-1980s, after more than 30 years of development, people's cognition of electronic evidence seems to have some deviation, from the initial recognition of electronic evidence in analog and digital form to the almost inevitable talk of "electronic data", it seems to ignore the natural physical evidence properties of electronic evidence.

This enlightens us: if we want to continue to practice the original intention of "taking electronic evidence as an independent legal evidence type", we need to find new classification characteristics, such as taking the material basis and formation mechanism as the classification characteristics, which not only excludes those traditional evidence in electronic form, but also accurately covers the authentic electronic evidence in people's minds, and can clearly distinguish it from physical material evidence.

Tip: This article is based on the author's trilogy of electronic evidence theory, "Principles of Electromagnetic Wave Evidence", "Recasting Research on Electronic Evidence Theory", "Introduction to Electronic Evidence", in which the academic views of the relevant chapters are originally written, the ownership belongs to the author, and the responsibility of the text is also borne by the author. Please respect the original writing is not easy, if you need to quote, please indicate the source!

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