Digital Evidence and the Digital Procedural Divide: Rethinking Equality in Global Cybercrime Adjudication

Abstract

The rapid expansion of digital technologies has transformed evidentiary governance in cybercrime
cases, where electronic evidence is increasingly stored beyond the territorial jurisdiction of
investigating states. Although various international legal instruments have been developed to
facilitate access to cross-border digital evidence, existing scholarship has primarily focused on
issues of jurisdiction, digital sovereignty, and international cooperation. This article argues that a
more fundamental challenge lies in unequal access to digital evidence and its implications for
procedural inequality in cybercrime adjudication. Employing normative legal research with a
transnational legal approach, this study conducts a conceptual analysis of international legal
instruments, regulations governing electronic evidence, and scholarly literature on cybercrime and
digital governance. The analysis combines doctrinal, comparative, and critical methods to examine
the relationship between access to digital evidence and procedural equality. The findings reveal
that jurisdictional fragmentation, the dominance of global digital platforms as data gatekeepers,
and disparities in investigative capacities among states have created structural inequalities in access
to cross-border electronic evidence. To explain this phenomenon, the article develops the concept
of the Digital Procedural Divide, defined as a structural disparity in the ability of states and legal
actors to obtain, authenticate, and utilize digital evidence in criminal proceedings. The study
demonstrates that unequal access to digital evidence may undermine the principles of equality
before the law, due process, and access to justice. It concludes that global digital evidence
governance should be reoriented from a narrow focus on investigative efficiency toward the
promotion of procedural equality in cybercrime adjudication.