WhatsApp and Similar Platforms as a Source of Evidence in the Pre-trial Phase of Criminal Proceedings

Abstract

In this updated version of a work originally published three years ago, we continue to address the pervasive use of electronic messaging applications. These applications have been peculiarly incorporated into the entire criminal process—starting from the investigation phase—through the content of these messages, which are reviewed via an “irregular crosscheck” conducted by the legal counsel of the Administration of Justice. This practice has emerged in legal forums due to the inertia of custom, resulting in disastrous evidentiary consequences. In contrast, procedural laws provide regulations aligned with the documentation and public faith powers of legal counsels. Furthermore, this proper procedure would produce evidence that meets all the guarantees required in criminal proceedings. The Supreme Court has recently addressed this issue in a case of significant media and social relevance, involving the investigation of the State Attorney General, whose mobile phones were seized during a search of his professional office.