Fair Trial Standards for Digital Evidence

The principle of fair trial is fundamentally challenged by the increased use of digital evidence and digital forensics technology in criminal investigations. This paper exemplifies those challenges and focuses on feasibility analysis of a suitable governance model for digital evidence. To further the debate on such model proposed are (i) a conceptual framework for fair trial-based evidence rules; (ii) a reliability validation enabling framework for digital evidence (RVEF) and (iii) a new digital right to procedural accuracy (RPA).

The conceptual framework delivers an understanding of how evidence rules can be rooted in fair trial principles and the imminent challenges with those evidence rules and their transposition to digital investigations. To address those challenges in practice, the proposed RVEF is a formal approach to create audit trails for evidence reliability validation. The RVEF utility is tested in case studies with the Norwegian police. Finally, the proposed new digital right to procedural accuracy, builds upon the conceptual framework and RVEF, to provide the legislative anchor for the protection of individuals from the negative effects of the increased use of technology in digital evidence processing and data-driven investigations.