I recall the first week that I was in a law office. The papers were heaps of documents, and the discovery of a single item of evidence required hours of searching through boxes. It seems like it was a lifetime ago.
Criminal justice is a race today, which is driven by facts and intelligent tools. Technology has brought police activity out of the notebook and onto the network, thus making investigations more precise and, in many cases, significantly quicker.
There is a price to this pace, though: it leaves new inquiries of fairness, privacy, and what we can really trust in a courtroom. This is a shift that I have witnessed during my five years working on criminal cases. The changes impact everyone, including the accused person and the person who is victimized and awaiting justice.
This is an overview of the current tools that are dismantling cases and the subsequent significant legal battles.
Part 1: Catching Criminals with Data—The Investigation
Law enforcement tools today are like a science fiction show, but they are not fiction, and they are very strong.
1. The Power of Rapid DNA Analysis
DNA testing was slow over the years. The data identified at a crime scene was required to be submitted to a laboratory, and the process of obtaining a profile might take weeks or months. This slowness caused delays in all things, and even dangerous individuals were kept longer.
We now have Rapid DNA Analysis.
The intelligent technology can accept a biological sample (such as a blood sample or saliva sample) and create a complete DNA portrait within a matter of a few hours. This is a massive bonus in time-sensitive cases. It enables police to check the sample instantly against national databases of known offenders.
Why this is important in court: DNA has been termed the gold standard of evidence due to its high degree of precision. However, speed does not substitute unhurried work. As far as DNA is concerned, we as lawyers pay great attention to the chain of custody. This is the need to demonstrate precisely where the sample was, who handled it, and how it was kept from the time it was collected until it was tested. When that chain is discontinued, the findings, however quick they may be made, cannot be relied upon before a jury. The role of DNA has also been significant in the release of individuals who were wrongfully convicted many years after their trials.
2. Tracking Digital Footprints
A cell phone is the most valuable witness in nearly all criminal cases nowadays.
A computer or phone contains an unbelievable quantity of information police can gather, which includes:
- Location Data: Where a person was at a specific time, based on cell tower pings or GPS.
- Communication: Texts, calls, and email records.
- Search History: What the person looked for online.
- Social Media: Posts, photos, and connections with others.
This information creates an image of the life of a suspect, which is sometimes impossible to compare by eyewitnesses. The police employ special programs, commonly referred to as Forensic Data Extraction (FDE) programs, to extract all pieces of this information.
Why this is important in court: The statute is quite explicit: the police may not simply seize the phone of a suspected criminal and begin searching it. Their search warrant should be obtained. The law considers your cell phone as an extension of your home, and as such, it is highly safeguarded by the Constitution. It is my work to question the warrant–was the police reasonable to look? Did the search extend to what they had to find?
3. Smart Surveillance: Seeing Everything
All around us, we see cameras and sensors. A significant investigative device is this universal watch.
- Facial Recognition: A police officer is able to enter the image of a blurry photo taken by a store camera and run the image through software that will match the face in databases of millions of images to find a match.
- License Plate Readers (ALPR): These cameras are attached to the poles or police vehicles and scan all license plates automatically. They follow and keep a record of the whereabouts of that car. In case of any crime, police have the option of searching their files to check the vehicles that were present at the scene.
- Body-Worn Cameras: The cameras are now worn by nearly all police officers. These are cameras that capture communication with the citizenry. This video evidence is rather useful in court to explain the actual events. It may help shield the officers against false accusations, and officers may be held to account with the use of force as well.
The Privacy Debate: These means are keeping us safer, yet they give serious concerns over government control. When the police are able to trace each and every vehicle and distinguish each and every face, then where would personal privacy commence? It is a legal battle that is being continued at the expense of our Supreme Court.
Part 2: The Courtroom Showdown—How Tech Changes Trials
Technology does not end at the door of the police station. It alters the way in which the trial is conducted, the presentation of evidence, and decision-making by the judges.
1. The E-Discovery Challenge
As a paralegal, my pre-lawyer days were characterized by E-Discovery. E-Discovery is an abbreviation used to refer to Electronic Discovery.
It is a huge amount of data in a contemporary case. One case of corporate criminals can bring millions of emails, texts, spreadsheets, and documents. Such files cannot be printed; they have to be searched and handled electronically.
Lawyers have special software that is able to categorize, label, and search this vast pool of documents. The software has the ability to locate important phrases, search through all the messages between two individuals within a short time, and exclude sensitive information. It has transformed the discovery or paperwork nightmare aspect of a trial into a digital management activity.
This proves to be a challenge in ensuring that the prosecution and the defense side have access to all they need to demonstrate their case. By withholding a single crucial text message, the entire trial may become unjust.
2. The Rise of Virtual Courtrooms
Courts had to change swiftly due to the pandemic. Trials and even hearings were switched to video conferencing, such as Zoom.
This system has become persistent as it is in many cases more efficient.
- Remote Witnesses: Living experts can also provide a testimony even when they are working in their offices rather than travelling across the nation.
- Faster Hearings: Courts are able to conduct short bail hearings or status checks online, which is also time-saving.
Nonetheless, there is a concern in the legal profession that the virtual court eliminates the human element. Does a jury become as active when looking at a small screen? Is it possible that a judge can determine the truthfulness of a witness by just watching a tiny video screen? A courtroom is supposed to be a location where the victim and the accused stare at each other. By substituting that with screens, we run the risk of losing some of the gravity and heaviness of the justice process.
3. The Use of Risk Assessment Algorithms
The courts in the United States and elsewhere are beginning to adopt complicated computer programs, which aid the judges in determining who is to continue being detained pending trial. Such programs are referred to as Risk Assessment Tools.
Their operation is easy; the algorithm works with the data about the defendant (age, previous offenses, employment background, etc.) and assigns them a score. The score approximates the likelihood that they will appear at their next court hearing or repeat a crime under bond.
The Bias Problem: Although this may seem to be highly objective, i.e., just math, right?, it has serious problems. These programs are fed with historical data. When police departments have a history of arresting a higher rate of individuals in a particular neighborhood, the algorithm will respond to that behavior and will score a greater risk in individuals of the same neighborhood, whether they have committed an identical crime as another individual in a low-risk neighborhood.
Lots of legal analysts have been cautioned by the fact that such tools may contribute to embedding old human prejudices in new, but supposedly objective machines, thereby providing an unjust system. It implies that we must take a closer look at the data that the computer works with, but not the score given by it.
Part 3: New Problems for Lawyers—Trust and Authenticity
As technology becomes smarter, the testimony that we provide becomes more difficult to believe. The most significant legal issues in the modern world are connected to establishing that digital evidence exists.
1. The Threat of Deepfakes
This is the latest and probably the most serious issue of the courts: the emergence of deepfakes.
A deepfake is a video, audio, or image that appears to be completely real and was generated by Artificial Intelligence (AI) to demonstrate something that has not occurred. AI is capable of recording a handful of minutes of the voice of a person and replicating it in an entirely fabricated recording of a person admitting a crime.
What this means for the courtroom:
- Eroding Trust: In case such a video is entirely genuine, defense attorneys can just assert that it is a deepfake. This casts doubt upon any visual evidence, an issue referred to as the “liar’s dividend.”
- Authentication Battle: Conventionally, you establish the authenticity of a photograph by witnessing the photographer who took it. In the case of deepfakes, we now require forensic specialists who are able to analyze minute digital flaws, pixels, and metadata to confirm whether the material is authentic or not. Such experts are costly, and their opinions may be difficult to comprehend by a jury.
Judges are now being forced to formulate new regulations on how to deal with such evidence. They need to know that the evidence is authentic before a jury is ever subjected to it.
2. The “Black Box” of AI Evidence
When it comes to law, when you are giving scientific evidence (such as fingerprint analysis or ballistics), the process involved must be transparent and demonstrated. In the US, this concept is referred to as the Daubert Standard and provides that the science must be reliable and testable.
The issue with most new AI systems, in particular facial recognition or risk assessment ones, is that it is a black box. We give it data, and it gives us a result, but it is not explained how the AI actually got this result, or how it was so complex that it is not clear.
As a lawyer, I will not be able to challenge the science against my client in the manner it deserves, as I will not be able to comprehend the science. The courts are struggling with the concept of permitting evidence of systems that have no clear description of the way they operate. To have a fair trial, transparency is what is required.
3. The Problem of Scale
All this new information has resulted in one big issue: police and forensic labs are overworked.
Although Rapid DNA can test the sample within hours, there are still massive collections of older cases pending to be tested in laboratories. Police collect information on phones, yet they frequently lack personnel to process the terabytes of information they are collecting.
This is an imbalance that will imply that leads generated by technology can outrun the Justice system in terms of following them. This brings about frustrations and delays to all parties.
Conclusion
We have reached an interesting stage due to technology. Now, police are able to crack cold cases that could not be broken a decade ago, and they are able to track suspects on just a slice of DNA or a crumb of location information.
However, the change does not come without problems. With each new development that assists law enforcement, a legal issue regarding fairness, privacy, and due process arises. There is always the matter of a balance between the security of the people and the most basic rights of the individual.
This field of law is evolving rapidly, and lawyers should not be left behind in such technologies. The next legal battle will not be a battle over a paper agreement, but the authenticity of a deepfake video or the prejudice embedded within a risk assessment program.
Clients, in case you have a case where the digital evidence is complicated, or you just want to explore the regulations further regarding the warrant needed when dealing with cell phones, I can help you. I will be able to assist you in investigating the standards of legislation that may be involved in your area.
I also write regularly on Medium. If you’d like to explore more of my work, you can read my articles there.