COMPARATIVE STUDY OF DIGITAL EVIDENCE IN THE UNITED STATES

A. Introduction

In Indonesia, there are multiple stages of Investigation of criminal acts in a court of

law, one of the stages that must be carried out by the judge when examining criminal
offenses at trial is the evidentiary (pembuktian) stage as a means of determining
whether the accused is guilty or not. It can be said, that the evidentiary stage is a
means to achieve the objective of criminal procedure law in the form of material
truth. Andi Hamzah stated that proof of whether or not the defendant commits an act
which is allegedly the most important part of the court proceedings. 1 Along with the
development of information technology and telecommunications, there are other
evidences that are not regulated in the Criminal Procedure Code. Evidence that is in
the form of electronic or often referred to as electronic evidence, such as electronic
information, data or electronic documents, examination of witnesses using
teleconference, which contains company documents in addition to other evidence,
such as cassette radio records, VCD (Video Compact Disk) or DVD (Digital Versatile
Disk), CCTV recordings (Closed Circuit Television), even SMS. Meanwhile, in the
United States, digital evidence is conceptually the same as any other evidence2—it is
information leveraged in an attempt to place people and events within time and space
to establish causality for criminal incidents. However, digital evidence has a wider
scope, can be more personally sensitive, is mobile, and requires different training and
tools compared with physical evidence. This paper is roughly organized according to
the Federal Rules of Evidence, with examples of how those rules have been applied to
electronic evidence.

1
Andi Hamzah, Hukum Acara Pidana Indonesia (Jakarta: Sinar Grafika, 2014). Hlm. 249.

2
"Digital Evidence." Law Enforcement Standards Office. National Institute of Standards and Technology, US
Department of Commerce, 16 July 2012
B. Research Questions
According to the background stated above, the formulation of the problem are stated
below:
1. What is the status of Digital evidence as legal evidence in criminal procedure?
2. what is the requirement for the admissibility of Digital evidence as legal evidence
in Criminal Procedure?

C. Digital Evidence In Criminal Procedure In Indonesia

According to M. Yahya Harahap, juridically the evidentiary stage is the
provisions which contain inheritance and guidance on the methods justified by the
law to prove the guilt of the accused. Evidentiary law is also a provision that
regulates evidence justified by the law and regulates the evidence that may be used by
judges to prove the accused's guilt. The court must not arbitrarily commit criminal
acts in the court has been regulated in the Criminal Procedure Code and special laws. 3
According to the provisions of Article 183 of the Criminal Procedure Code, then the
Indonesian criminal procedure code adheres to a system of negative evidence
(negative wettelijk) or proof according to the law negatively. 4The verification system
is very similar to the verification system in the raisone. The judge in making
decisions aboutwhether or not a defendant is bound by the evidence determined in the
law and the conviction (conscience) of the judge himself. So, in the negative system
there are two things that are a requirement to prove the fault of the defendant, namely
wettelijk which means that legal evidence that has been determined by law and
negative which means the judge's conviction. When referring to the provisions of
Article 184 of the Criminal Procedure Code, electronic evidence is not included in the
3
M. Yahya Harahap, Pembahasan Permasalahan Dan Penerapan KUHAP (Pemeriksaan Sidang
Pengadilan, Banding, Kasasi, Dan Peninjauan Kembali) (Jakarta: Sinar Grafika, 2012). Hlm.273.
4
Bandingkan dengan Harahap, Pembahasan Permasalahan Dan Penerapan KUHAP (Pemeriksaan
Sidang Pengadilan, Banding, Kasasi, Dan Peninjauan Kembali). Hlm. 280.
types of legal evidence. In its development, the regulation of electronic evidence can
also be found in several special laws, such as RI Law Number 31 of 1999 concerning
Eradication of Corruption Crimes as amended by RI Law Number 20 of 2001, The
latest breakthrough in the development of evidence can be seen in Law No. 11 of
2008. The Act is an answer from the main problem in the development of crime that
is based on information technology (cyber crime) and is able to accommodate the
evidence that is most needed in the crime, namely electronic evidence in the form of
electronic information and electronic document documents are valid evidence. Then
in paragraph (2) the article is stressed, that electronic information and electronic
documents are extensions of valid evidence in accordance with applicable procedural
law in Indonesia. In special criminal laws, electronic evidence is formulated expressly
and has the power as legal evidence. However, in criminal legislation governing
electronic evidence there are differences in policy regarding the status of digital
evidence or electronic evidence, that is in legislation where one electronic evidence is
recognized as expanding evidence of evidence, whereas in legislation that is others
are recognized as stand-alone evidence.5 According to law Article 5 no. 11 year 2008
electronic documents are valid evidence. Then in paragraph (2) the article is stressed,
that electronic information and electronic documents are extensions of valid evidence
in accordance with applicable procedural law in Indonesia. Confirmation of
information and electronic documents as evidence is also included in Article 44 of
Law no. 11 of 2008, the formulation of "evidence of investigation, prosecution and
examination in court according to the provisions of this law is as follows:
a. Evidence as referred to in statutory provisions; and
b. Other evidence in the form of Electronic Information and / or Electronic
Documents as referred to in Article 1 number 1 and number 4 and Article 5 paragraph
(1), paragraph (2), and paragraph (3). " Thus, it can be understood that the electronic
evidence in the form of information and / or electronic documents is valid evidence in
the criminal procedure code. In this case, electronic evidence is a substitute for
5
Suseno, Yurisdiksi Tindak Pidaan Siber (Bandung: Refika Aditama, 2012). Hlm. 222.
letters, stand-alone evidence, and an extension of evidence evidence. The three
statuses of electronic evidence are not contained in the Criminal Procedure Code, but
the arrangements are contained in several specific laws and legal instruments issued
by the Supreme Court. The three statuses of electronic evidence can be narrowed
down again to 2 (two), namely stand-alone evidence and non-independent evidence
(substitute for letters and extension of evidence).

D. Digital Evidence in Criminal Procedure in The United States

In Black’s Law Dictionary Scientific evidence or popularly known as digital evidence
is referring to evidence derived from the implementation of scientific or technical
knowledge. Scientific refers to the definition refers to the rules or conditions of
science. The term Scientific Evidence is also known as forensic evidence. Scientific
evidence is obtained through scientific procedures and methodologies that are useful
to help understand an evidence / evidence device or determine the facts in a trial.
There are no indicators that can be used as a reference in determining whether a proof
can be said to be scientific. In that position, the United States Federal Rule of
Evidence explains that a person is said to be an expert witness if he has knowledge,
abilities, experience, training or education and is allowed to give testimony in court if
the scientific, technical and specialized knowledge of that knowledge can help in
understanding a evidence / evidence or determine a fact. 6 In the United States,
evidence can be accepted by the court if it is obtained legally, that is, evidence must
be obtained under the law governing search and seizure. so, evidence that meets the
requirements collected by the investigator, including electronic evidence, must not be
rejected by the court.7 Debra L. Shinder stated, there were several requirements that
had to be agreed to in order to be accepted in court, namely first, the evidence must
be competent (trustworthy and credible) in order to guarantee its validity. Through a
certified information security system, the integrity of content in one of the electronic

6
Federal Rules of Evidence.
7
Suseno, Yurisdiksi Tindak Pidaan Siber. Hlm. 227.
evidence (information and / or electronic documents) is guaranteed for authenticity 8;
second, evidence must be relevant (can prove the facts of a case); and third, the
evidence must be material, somewhat reinforcing the question in question in a case.9

E. Conclusion

By this research, in the United States through certain issues, such as authentication,
may be more complicated in the context of electronic evidence, traditional
evidentiary principles can be consistently adapted to address questions regarding the
admissibility of electronic evidence. When all else fails, comparison of the electronic
evidence with its most similar non-electronic analogue will enable a proponent to
draw upon the court’s familiarity with traditional evidentiary principles to provide
comfort in the trustworthiness of the electronic evidence. Meanwhile in Indonesia,
Electronic evidence used as legal evidence in criminal procedural law for verification
in court must make clear about the criminal act that occurred and meet the
requirements for its validity, such as being accessible, displayed, guaranteed intact,
and can be justified. The use of electronic evidence to help achieve the objectives of
criminal procedural law, namely material truth (substantial justice).

REFERENCES

8
Edmon Makarim , “Keautentikan Dokumen Publik Elektronik Dalam Administrasi Pemerintahan Dan
Pemerintahan Publik,” Jurnal Hukum dan Pembangunan, no. 4 (2015). Hlm. 518
9
Suseno, Yurisdiksi Tindak Pidaan Siber. Hlm. 228.
 Edmon Makarim , “Keautentikan Dokumen Publik Elektronik Dalam Administrasi
Pemerintahan Dan Pemerintahan Publik,” Jurnal Hukum dan Pembangunan, no. 4
(2015).

Suseno, Yurisdiksi Tindak Pidaan Siber. Bandung: Refika Aditama, 2012).

M. Yahya Harahap, Pembahasan Permasalahan Dan Penerapan KUHAP

(Pemeriksaan Sidang Pengadilan, Banding, Kasasi, Dan Peninjauan Kembali)
(Jakarta: Sinar Grafika, 2012).

Digital Evidence." Law Enforcement Standards Office. National Institute of

Standards and Technology, US Department of Commerce

Andi Hamzah, Hukum Acara Pidana Indonesia

B. CASE

1. According to the Criminal Procedure Code, Budi and Charles cannot lodge or
obtain legal remedy because according to Article 67, the prosecuted has the right of
legal remedy, except the charges regarding the case are dismissed or acquitted. While
in Adis case, according to Article 233 para (2), the legal remedies can be obtained
within 7 days after the decision was read or notified, but in this case adis were
formally notified on 18th December 2018, the limit of the request that must be
submitted to the court is at 27th of December 2018.

2. according to article 245 para (1) of the criminal procedure code, the cassation
request petition on 10 March 2019, the request is accepted by the court, because it
should adhere to the 14 day requirement stated in the article. Meanwhile, the brief of
cassation according to article 248 para (1) is invalid, because the brief of cassation
must be submitted within the 14-day period after the cassation request petition, In this
case, adis submitted the brief of cassation late, which the maximum date is 24 th March
2019.

3. it is impossible for his lawyer to lodge a reconsideration of a judgment according

to article 263 para (1), the one that can request such reconsideration are the plaintiff
and the ahli waris.