The criminal justice system is undergoing an unprecedented transformation with the digitalization of evidence and the emergence of artificial intelligence (AI) in justice administration. The collection, processing, and evaluation of digital evidence must adhere to fundamental principles to ensure technology serves as an ally rather than a source of injustice.
Access to electronic devices, databases, and social networks has optimized criminal investigations but raised concerns about privacy, legality, and transparency in evidence collection. Simultaneously, the use of AI in criminal justice poses significant risks, from decision-making opacity to potential violations of the right to defense and the presumption of innocence.
This analysis examines the inviolable principles in digital evidence collection, the limits and challenges of AI in criminal processes, and the guarantees that must be implemented to prevent the abuse of these technological tools.
Key Points:
- The collection of evidence stored on company electronic devices is valid as long as: (i) the employee’s informed consent is obtained; (ii) appropriate information collection is conducted to ensure its integrity and authenticity; and (iii) proper preservation of the evidence is ensured, guaranteeing the chain of custody.
- Evidence obtained through AI must meet strict standards of legality, transparency, integrity, and authenticity.
- AI cannot replace human judgment. Its use in criminal law must be regulated to avoid biases, arbitrary decisions, and lack of transparency.
- Automated decisions require human control and supervision. Algorithms cannot act without the intervention of judges and prosecutors, who must ensure their proper and understandable use.
In Detail:
Evidence Collection in Criminal Investigations: Access to electronic devices and databases in the context of a criminal investigation must comply with strict regulatory requirements. If evidence is obtained illegally, it will be declared null within the process.
When is the collection of digital evidence considered legal?
- When there is a prior judicial order. Access to private information is only valid if a judge has authorized the collection of the evidence.
- When the information holder gives their consent, provided that this consent is voluntary and informed.
- When the information comes from public sources. Records obtained from open social networks, media, or official documents can be used without judicial authorization.
If these criteria are not met, the evidence may be declared null and affect the criminal investigation.
The Importance of the Chain of Custody: For evidence obtained through AI or from company electronic devices to be admissible in court, its integrity must be ensured from the moment it is obtained until its presentation in the criminal process. The chain of custody is the procedure that documents each manipulation, storage, and transfer of the evidence, ensuring it has not been altered or contaminated.
Key Elements of the Chain of Custody:
- Detailed record of each manipulation. It must document who accessed the evidence, when, and for what purpose.
- Use of certified forensic tools. The evidence must be collected with specialized software that prevents accidental alterations, ensuring its integrity and authenticity.
- Backup through forensic copies. Duplicates of the digital evidence must be made to avoid alterations to the original file.
- Secure storage and restricted access. The evidence must be safeguarded in secure conditions and only handled by authorized personnel.
If the chain of custody is broken, the evidence loses its reliability and may be excluded from the criminal process.
Artificial Intelligence as a Tool in Criminal Justice: AI has improved criminal investigation through the automated analysis of large volumes of data. However, its use requires strict controls to avoid errors and unjust outcomes.
Minimum conditions for the use of AI in judicial processes:
- Transparency and auditability. Algorithms must be understandable and allow the parties to know how a certain conclusion was reached, i.e., with what information the algorithm was created so that the parties can analyze and challenge the results.
- Mandatory human supervision. No judicial decision can be based exclusively on AI; judges, prosecutors, defense, and victims must validate its results.
- Guarantee of non-discrimination. Audits must be conducted to prevent AI from reproducing biases in decision-making.
- Clear and specific regulation. A regulatory framework is required to define the conditions under which these systems can be used.
Action Recommendations:
- Comply with legal requirements in digital evidence collection. The collection of evidence must respect the principles of legality, authenticity, and chain of custody. Irregular evidence collection can lead to its exclusion from the process and affect the criminal investigation.
- Regulate the use of AI in criminal justice. Clear norms must be established to control the implementation, transparency, and supervision of AI in the judicial system, avoiding automated decisions without human control.
- Ensure human supervision in AI-based decisions. Judges and prosecutors must have the final say in the evaluation of evidence, ensuring that artificial intelligence is a support tool and not a substitute for human reasoning.
- Train judicial operators in digital forensic expertise. The correct interpretation of digital evidence requires specialized knowledge in forensic computing, cybersecurity, and data analysis. It is essential that judges, prosecutors, and experts receive continuous training to ensure the procedural validity of digital evidence
