7 - Principles to Govern Regulation of Digital and Machine Evidence

Summary

This chapter urges justice systems to recognize five key rights of the accused with respect to digital and machine evidence of guilt or innocence, in line with systemic goals such as accuracy, fairness, dignity, and public legitimacy: (1) front-end development and testing safeguards to minimize error and bias (based on a consensus view of algorithmic fairness); (2) meaningful and equitable pretrial access, including disclosure requirements, eliminating trade secret privileges, allowing defense testing, and defense access to potentially exculpatory technologies; (3) contestation, including a right to be heard in the development and testing process and access to experts both to review government evidence and develop defense evidence; and (4) a factfinding process that is epistemically competent but that also keeps a human in the loop, to protect equity and mercy, avoid automation complacency, and reject dehumanizing technologies. The chapter offers proposals to operationalize each right and discusses how each would apply to the various categories of digital and machine evidence discussed in Chapters 1–6.