Digital Evidence and the Adversarial System: A Recipe for Disaster?

Abstract

Scholars have observed that the adversarial system tends to provide courts with only a “small snapshot of the technological whole,” which in turn forms the record upon which broader legal pronouncements occur. As a result, they contend that legislatures should be more proactive in making rules governing complex and rapidly advancing technologies, and that courts must show deference to these rules. Other scholars retort that, in practice, legislatures often fail to update obviously flawed and outdated privacy provisions. Whether due to special interest influence, majoritarian dislike of criminal suspects, or other institutional constraints, legislative responses have been wanting. As such, courts often play a pivotal role in governing novel technologies. To help courts bear their burden more effectively, I make two general proposals. First, when courts must make or decide on the constitutionality of a rule, I suggest that the legislature should utilize the reference procedure, which is not inhibited by traditional trial constraints. Second, to aid courts in applying existing rules, I recommend tasking an independent institution with providing up-to-date reports of the current state of technologies expected to come before the courts. Counsel may use such complex and timely research to address gaps in technological evidence at trial.

Keywords: Digital Evidence, Adversarial System

JEL Classification: K14, K41, K19