Probative Value

• Author: Gerald Chan/Susan Magotiaux
• Pages: 251-275



Probative Value

9

I. Introduction.............................................. 

II. Identication ............................................. 

III. Cellphone Geolocation ..................................... 

IV. Character and Credibility ................................... 

V. Using Digital Evidence in Cybercrime Cases . . . . . . . . . . . . . . . . . . . . 

A. The Forensic Report .................................. 

B. Establishing User, Possession, and Control ............... 

VI. Deleted Data ............................................. 

VII. Conclusion............................................... 

© [2022] Emond Montgomery Publications. All Rights Reserved.

 Part III Use of Evidence

I. Introduction

The admissibility of any piece of digital evidence is important only because of the

probative value that the evidence will carry once it is properly before the trier of fact.

Digital evidence can be probative in all manner of cases. Accordingly, counsel must

always be on guard for potentially relevant digital evidence when preparing for trial.

This may be especially important for defence counsel, who do not have the benefit

of a professional police service gathering evidence in support of their case. Defence

counsel will have to be increasingly creative in searching for ways to locate and mar-

shal exculpatory digital evidence in defence of their clients.

In this chapter, we highlight some of the key uses and forms of digital evidence in

criminal trials and the problems that typically arise. This discussion is by no means

exhaustive, nor is it intended to be a substitute for retaining a qualified expert to assist

with trial preparation. The goal is simply to give counsel a few useful starting points

for determining when and how digital evidence may be put to use.1

II. Identication

Identification is frequently an issue in criminal cases. Digital evidence, particularly

video evidence, can be probative in resolving identity. The frailties of eyewitness

identification evidence are well known in our legal system. Where the identity of the

perpetrator is captured by video, however, many of these concerns disappear. The

Supreme Court of Canada (SCC) described the power of video evidence vividly in

Rv Nikolovski:2

It cannot be forgotten that a robbery can be a terrifyingly traumatic event for the victim

and witnesses. Not every witness can have the fictional James Bond’s cool and unflinch-

ing ability to act and observe in the face of flying bullets and flashing knives. Even Bond

might have diculty accurately describing his would be assassin. He certainly might

earnestly desire his attacker’s conviction and be biased in that direction.

The video camera on the other hand is never subject to stress. Through tumultuous

events it continues to record accurately and dispassionately all that comes before it. Al-

though silent, it remains a constant, unbiased witness with instant and total recall of all

that it observed. The trier of fact may review the evidence of this silent witness as often

as desired. The tape may be stopped and studied at a critical juncture.3

The weight given to video evidence depends on the degree of clarity and quality

of the video and—to a lesser extent—the length of time the accused appears on the

1 The authors wish to thank Matthew Musters of Computer Forensics Inc for his invaluable

assistance with some of the more technical portions of this chapter.

2 [1996] 3 SCR 1197, 1996 CanLII 158.

3 Ibid at paras 20-21.

© [2022] Emond Montgomery Publications. All Rights Reserved.