The Impact of False Digital Evidence on Justice

The justice system increasingly relies on digital evidence to prosecute and defend cases. From CCTV and Body Worn Video, mobile phone videos and photos and social media posts and web capture, this type of evidence can be pivotal in determining the outcome of legal proceedings. However, the rise of digital disinformation, deepfake and shallowfake poses significant challenges.

With societal mistrust of any digital material, there lies a real risk of undermining the integrity of the justice system, damaging reputations, and incurring substantial financial costs. In this article we dive into the impact of false evidence in the courtroom, and discuss ways that technology and other solutions can counteract its threat.

The Nature of False Digital Evidence

False digital evidence encompasses any digital data that has been manipulated or fabricated to mislead or deceive. This can include altered documents, photoshopped images, deepfake videos, and forged metadata. The sophistication of digital manipulation techniques has advanced rapidly, making it increasingly difficult to distinguish authentic evidence from falsified content (see our latest articles on deepfakes and shallowfakes). A 2022 report by the Europol Innovation Lab highlighted the growing prevalence of deepfake technology, warning of its potential to disrupt judicial processes and erode trust in digital evidence.

The Erosion of Trust in Digital Evidence

The trustworthiness of digital evidence is foundational to the justice system. When this trust is challenged, the consequences are extreme. Judges, jurors, and legal experts must be confident that the evidence presented is genuine. However, there have been instances of tampered evidence in cases, highlighting the vulnerabilities of digital data.

One of the most notable uses of falsified evidence in court was the use of deepfake audio in a child custody battle to discredit the father. In another case, an American mother utilised deepfake photos and videos to threaten her daughters cheerleading rivals. The mother was arrested on charges of harassment and cyber-harassment.

Financial Costs

To ensure a fair trial It is right that defence teams should question the veracity and integrity of evidence presented by the prosecution case.

As the society we live in becomes more digitised, every event or investigation will have a digital element, which can be fundamental to a prosecution case. With generative AI and deepfake technology however, the integrity of digital media is being questioned more and more.

When the prosecution is unable to defend a challenge of digital material from the defence, this could have serious consequences, including leading to the possible collapse of the trial. The financial cost of this should not be underestimated. In a high-profile case where multiple resources have been used throughout the investigation and the subsequent criminal justice process, this could run into millions of pounds.

The impact, however, is not just financial it is much wider with longer lasting and far-reaching consequences.

Reputational Damage

The reputational damage to the justice system from false digital evidence can be severe. Public confidence in the judicial process is critical for upholding the rule of law. So, if dangerous criminals are able to employ doctored evidence as part of their case, and win, this jeopardises the foundation of legal justice and integrity. Furthermore, when cases of falsified evidence come to light, they not only harm the credibility of the specific cases involved but also erode broader public trust in the system’s ability to deliver justice impartially.

For legal professionals, involvement in cases where false evidence has been used can impact their reputation, regardless of their role in the case. For instance, solicitors and barristers may find their careers adversely affected if associated with high-profile cases of evidentiary tampering. This reputational risk extends to the institutions they represent, potentially impacting the integrity of law firms and judicial bodies.

Simply put, we would not risk presenting other forms of evidence in court if the provenance and integrity cannot be assured, why risk this with digital evidence?

The Role of Technology in Addressing False Evidence

Addressing the issue of false digital evidence requires multiple approaches. Technology plays a crucial role in both the problem and the solution. Advanced forensic tools are important for detecting and analysing digital manipulations. Companies like Adobe and Microsoft are leading this development, integrating forensic capabilities into their software suites to aid legal professionals.

Whilst detection tools are useful and can assist cases in the short-term, this is only part of the solution. These tools are often costly, and require continuous updates as deepfakes and shallowfakes become more convincing and harder to detect inconsistencies.

Fortunately, tools have been developed to prevent doctored evidence altogether from the outset, removing the need for short-term solutions like detection capabilities. Both MeaConnexus and MeaFuse, created by Issured Limited, utilise Blockchain technology to ensure the digital chain of custody persists throughout the lifecycle of the evidence from its point of capture.

Educational initiatives are equally important. Legal practitioners need ongoing training to keep up with the latest developments in digital forensics and evidence authentication. Institutions like Canterbury Christ Church University offer certifications and courses aimed at equipping professionals with the necessary skills to handle digital evidence effectively.

Legal and Policy Responses

In response to the challenges posed by false digital evidence, legal and policy frameworks are evolving. The UK’s General Data Protection Regulation (GDPR) includes provisions that indirectly address the integrity of digital data, by enforcing strict controls on data handling and ensuring accountability. Additionally, the Law Society of England and Wales has issued guidelines on the handling of digital evidence, emphasising the need for thorough authentication and the use of certified forensic experts.

Internationally, efforts are being made to standardise the procedures for digital evidence handling. Interpol provides operational support, guidance and capacity building to support countries collecting and analysing digital forensics, including offences involving false digital evidence.

Conclusion

The impact of false digital evidence on the justice system and prosecution cases is complex and has the potential to be a major risk. It threatens the integrity of legal proceedings, imposes significant financial burdens, and undermines public trust in the judicial system. Addressing these challenges requires a collaborative effort from legal professionals, innovators, and policymakers.

But as discussed in the Counsel Magazine, false evidence won’t just be involved in high-profile cases, it will be low-level cases like insurance claims, civil disputes and appeals which could see an increase in disinformation.

By investing in advanced authenticity and detection tools, enhancing education and training, and strengthening legal frameworks, we can mitigate the risks posed by false digital evidence and maintain the principles of justice in the digital age.