General Overview of Evidentiary Aspects

The procedural law institutions in Indonesia place proof as an important aspect in the series of trials in the four judicial bodies. Riduan Syahrani explains that proof is the presentation of legal evidence to the judge examining the case in order to provide certainty about the truth of an event.[2]On the other hand, Subekti explains that proof is the process of how evidence is used, submitted, and defended in a particular procedural law.[3]

Munir Fuady argues that the law of evidence will determine to whom a burden of proof is placed.[4] As for the burden of proof, it is a determination by law that he/she must prove all the facts/truths alleged, which through the proof will be clear, both to the opposing party or the judge, that the truth really happened and has the consequence that if the party fails to prove it, he/she must be declared defeated.

Because there is a burden of proof, evidence is certainly needed to support the facts. Andi Hamzah defines evidence in the same way as Subekti, but the evidence is described differently, namely the effort to prove through tools that are allowed to be used to prove arguments in criminal cases.[5] Hari Sasangka and Lily Rosita explain that evidence is everything related to an act, which with the evidence will be used to create confidence for the judge.[6] Bambang Waluyo argues that evidence is something, both goods and non-goods, which is determined by law to be used to strengthen or reject charges, demands, or lawsuits.[7]

In its development, lawmakers added a new type of evidence in procedural law, namely electronic evidence regulated in Article 5 paragraph (1) of the ITE Law. According to Lamintang, an electronic information and/or document is a valid piece of evidence and can be stored in or retrieved from data storage.[8] Several things can be presented as electronic evidence, such as photos, visual-audio, or screenshots. However, it is necessary to pay attention to the formal and material requirements so that electronic evidence can be submitted, as regulated in Article 5 paragraph (4), Article 6, Article 15, and Article 16 of the ITE Law. Therefore, in many cases, digital forensics is commonly used to test the validity of electronic information/documents.