How Courts Use Digital Evidence – New Challenges for Political Regulation in the Era of Artificial Intelligence

Debates on the potential challenges of Artificial Intelligence (AI) in the context of courts mostly discuss the degree to which courts may use AI tools for the preparation of their judgments. They also frequently touch upon the question of whether judges might be replaced by AI-based decision-making in certain cases. However, AI also influences the way in which courts work in multiple other respects. Courts are increasingly confronted with digital evidence. How can they know that this evidence is not fake or manipulated? Digital evidence could be unreliable - for example due to AI-based deepfakes - or it could be manipulated by cyberattacks. Judges usually do not have the technical expertise to detect manipulations. Will courts therefore more systematically need experts to evaluate the reliability of digital evidence? In most legal systems, courts enjoy broad discretion for the way in which they evaluate evidence. Judges who are unaware of potential manipulations of digital evidence may even overlook the related risks. The paper discusses the impact of manipulated digital evidence on the rights of those concerned and looks at political and regulatory responses to challenges caused by such manipulations.