Sin categoríaDigital Evidence in Corporate Criminal Cases: Whoever Dominates the Information Wins

The case file has twenty volumes, fifty thousand emails and three contradictory expert reports. The hearing lasts five days. And the defence that arrives at trial knowing a lot of law and little of the case, loses.

In corporate criminal law, the battle is about the evidence

Proceedings for economic offences are not decided by arguing whether article 252 requires personal enrichment or not: that is resolved in two pages. They are decided on the evidence: whether that email says what the prosecution claims it says; whether the Tax Agency expert report quantifies correctly; whether the server imaging was done with safeguards; whether the chain of custody was broken; whether that transfer has the cause attributed to it or another one. And that battle is won by whoever dominates the information, not by whoever knows the doctrine best.

Challenging the digital evidence

It is the most fertile ground of modern defence, and the most neglected. These are the questions to ask in every procedure with digital evidence: Who obtained the evidence and how? If the corporate email imaging was done by the company itself without a prior usage policy, without proportionality and without safeguards, that evidence is challengeable, and with it falls everything derived from it. Is there a chain of custody? Were the hash values calculated? Can it be proved that the file produced at trial is identical to the one obtained? Did the search order cover what was taken? Searches exceeding the order are challengeable, and in macro-cases they are frequently exceeded. Was professional secrecy respected? Emails with the lawyer cannot be seized; if they are in the imaging, they must be expelled, and their presence contaminates.

Digital evidence obtained without safeguards is not weak evidence. It is null evidence, and its nullity drags down, through the connection of unlawfulness, everything derived from it.

The party expert report: contradicting, not confirming

The prosecution report (from the Tax Agency, the court expert, the police) arrives clothed in an appearance of technical objectivity that impresses the court. And it is, in reality, a technical opinion based on debatable premises. Almost always on three points: the method used, the starting premises and the scope of the conclusions, which usually go further than the data allow. A party expert report that merely says the opposite is useless. The one that works is the one that dismantles the method: the one that shows that if one reasonable premise is changed, the result changes completely. That generates reasonable doubt, which is the only thing needed.

Time: dominating the investigation, not the trial

The most expensive mistake in corporate criminal law is saving the arguments for the trial. In a complex procedure, by the time the trial arrives, the case is already written. Almost everything is decided during the investigation: which evidence is taken and which is not, which experts testify, which documentation is incorporated, which lines of investigation are opened. A passive defence during three years of investigation, however brilliant at the hearing, arrives late to its own case. The effective defence intervenes from day one: it challenges, proposes, contradicts and controls the timing.

The team

Hence a practical conclusion: in these matters, the criminal lawyer alone is not enough, however good. A team is needed that integrates the lawyer, the digital forensic expert (who must intervene from the obtaining of the evidence, not when it is already closed) and the accounting expert. It is what we do with the LIWARD Method: processing the entire case, building a map of procedural risks and deciding every move with the information mastered. And we also apply it as private prosecution: finding the money demands exactly the same work.