Digital evidence and the new criminal procedure

The widespread use of computers in recent years has led to a new type of evidence in criminal cases: digital evidence, consisting of zeros and ones of electricity. In this Essay, Professor Kerr considers whether traditional rules of criminal procedure can effectively regulate investigations involving digital evidence. Kerr concludes that the new methods of gathering digital evidence trigger a need for new legal standards. Existing law is tailored to the gathering of physical evidence and eyewitness testimony; applying that law to digital evidence collection produces a number of surprising results. Professor Kerr contends that new rules are needed, and offers preliminary thoughts on what those rules should look like and which institutions should generate them.