A New Right to Procedural Accuracy: A Governance Model for Digital Evidence in Criminal Proceedings

Abstract

This paper motivates and studies the feasibility of a new digital right to procedural accuracy (RPA) for digital evidence processing in criminal investigations. The need to guarantee a new principle of procedural accuracy under Art. 6 ECHR is based on the concern that digital forensic science and AI technology have a significant impact on individuals’ rights in criminal proceedings, which are neither coherently nor comprehensively addressed. The personal and material scope of RPA are examined and include: (i) protection against unreliable digital evidence processing; (ii) right to access the chain of evidence, explanation, and forensic assistance; and (iii) the right to participate in the determinative stages of the digital evidence processing. Limitations of RPA are also discussed.

Keywords: fair trial, digital forensics, Digital Evidence, criminal procedure, digital investigation, Artificial Intelligence, AI-generated evidence