TRUTH IN JUDGMENT, TRUTH IN EVIDENCE. HOW TO MAKE THEM COMPATIBLE IN THE AGE OF DIGITAL INVESTIGATIONS
The notion of truth in criminal trial, as well known, is unstable for many reasons: normative, philosophical and historical ones.
However, for a long time, the “human notion of truth” — whatever it was — that the judge used in the decision-making, was the same notion that he used to evaluate the outcome of every evidentiary activity.
When we talked about something known beyond any reasonable doubt, and something that evidence could demonstrate with that or lower certainty, we were talking about differences in degree and not in quality.
Now, and precisely since science and (but not with the same consequences) philosophy have abandoned a notion of stable truth and replaced it with a concept of probabilistic truth, “how we know the reality of the world” and “how we need to know it in a criminal decision” seem to be placed in different locations.
Digital evidence probably increases the distance between these two places, offering us “mathematical” evidence, but not a “mathematical” truth, in the diminished sense of a statement deductively true, about a criminal human action.
Science, and particularly digital science, is giving us sets of probabilities, while judge needs to go beyond any reasonable doubt. So, we need to reconnect the truth of the science with the truth of the trial.
Digital and IA-based investigations are the most important challenge, and we need to find out how can preserve both digital science and BARD rule, a necessary one given the unwavering principle of the presumption of innocence.
The alternative, to reconnect the digital evidence with the ascertainment, seems to be the following one: to increase the technical skills, but then also the power, of the police and the public prosecutor, during the preliminary investigation; or to increase the adversarial method of gathering evidence, even the digital one, and that means to increase the participation of the defendant to every digital evidentiary activity.
Both the possibilities need to be investigated.