Digital Evidence and the Chain of Custody in Criminal Procedure: A Doctrinal, Normative, and Jurisprudential Analysis

Abstract

Objective: To analyze digital evidence in Brazilian criminal procedure, focusing on the chain of custody, by examining its doctrinal, normative, and jurisprudential foundations, as well as the consequences of absent or inadequate documentation for the admissibility and evaluation of evidence.

Method: This study adopts a qualitative approach based on doctrinal and normative analysis, complemented by a jurisprudential review of recent decisions of the Brazilian Superior Court of Justice, with particular emphasis on the criteria used to assess the integrity, authenticity, and reliability of digital evidence.

Results: The findings demonstrate that digital evidence, due to its intangible, volatile, and easily alterable nature, requires strict technical procedures for collection, preservation, and documentation. The case law of the Superior Court of Justice shows an increasing tendency to consider digital evidence inadmissible when the chain of custody is not properly documented, placing the burden of proving integrity on the State. A distinction is also observed between the total absence of documentation, which undermines the reliability of the evidence, and minor procedural irregularities, which may be addressed at the evidentiary assessment stage.

Conclusion: The study concludes that the chain of custody is a fundamental requirement for the validity of digital evidence in criminal proceedings. The analogical application of traditional evidentiary rules is insufficient, and the lack of specific regulation weakens legal certainty, reinforcing the need for legislative intervention to establish clear technical standards for the handling and evaluation of digital evidence.