La exclusión probatoria del documento electrónico en materia penal

Abstract

The Colombian criminal process has undergone significant transformations since Legislative Act 03 of 2002, which introduced the accusatory system focused on orality and the protection of fundamental rights. In this framework, electronic documents—particularly data messages such as those exchanged via WhatsApp—have become increasingly relevant as evidence. However, their use in court raises tensions between investigative efficiency and the right to privacy. This paper analyzes, from both substantive and procedural perspectives, the requirements for the admissibility of such evidence in criminal proceedings, as well as case law allowing its use without judicial authorization when voluntarily handed over. The analysis draws on legal norms, scholarly doctrine, and rulings of the Supreme Court of Justice to develop a critical perspective on the potential infringement of fundamental rights, advocating for a rights-based approach to due process.