Digital evidence: Unaddressed threats to fairness and the presumption of innocence

Abstract

Contemporary criminal investigation assisted by computing technology imposes challenges to the right to a fair trial and the scientific validity of digital evidence. This paper identifies three categories of unaddressed threats to fairness and the presumption of innocence during investigations – (i) the inappropriate and inconsistent use of technology; (ii) old procedural guarantees, which are not adapted to contemporary digital evidence processes and services; (iii) and the lack of reliability testing in digital forensics practice. Further, the solutions that have been suggested to overcome these issues are critically reviewed to identify their shortcomings. Ultimately, the paper argues for the need of legislative intervention and enforcement of standards and validation procedures for digital evidence in order to protect innocent suspects and all parties in the criminal proceedings from the negative consequences of technology-assisted investigations.