Standards for Digital Evidence

Abstract

Is digital evidence reliable? Does digital forensics in criminal investigations uphold to fair trial principles and forensics standards? What is the impact of the increased use of science and technology in the investigation on the rights of suspects, accused, and defendants? This research attempts to address those questions through the lens of the right to a fair trial (Art. 6 ECHR). Selected fair trial guarantees are analysed in order to clarify specific evidence rules for digital investigations. These evidence rules feed into a gap analysis exemplifying unaddressed threats to the right to a fair trial rooted in the specifics of digital investigations and the underdeveloped reliability standard for digital evidence. The imminent challenges with digital evidence in practice are demonstrated in the review of the Encrochat investigation.To address the identified challenges the thesis employs action research and examines practical solutions for improvement of digital evidence reliability by integrating fair trial based evidence rules, with existing digital forensics methodology and given law enforcement requirements. As a result, a new reliability validation enabling framework for digital evidence is proposed. The practical benefits of the proposed framework for digital forensic examiners and law enforcement are tested in two case studies in cooperation with the Norwegian police.The argumentative legal analysis further explores the feasibility and implications of a new digital right to procedural accuracy to comprehensively address the significant impact of digital forensic science and technology on individuals’ rights in criminal proceedings and to serve as a legislative anchor for digital evidence reliability assurance.