“We’re not gonna have a war, we’re gonna have the appearance of a war.”
Conrad Brean (Robert de Niro)
“Look at that! That is a complete f….. fraud, and it looks a hundred percent real. It’s the best work I’ve ever done in my life, because it’s so honest.”
Stanley Motss (Dustin Hoffman)
Wag the Dog (1997)
In Barry Levinson’s dark comedy Wag the Dog, we see a savvy political operative/spin doctor (Robert de Niro) get together with an exuberantly resourceful Hollywood executive (Dustin Hoffman) to generate images and footage of a fictional war to distract and misdirect the public from focusing on a scandal involving the US President. Over the course of a week or so, an ensemble of writers, actors, song writers, cameramen, and technicians put together a persuasive, realistic, bamboozling visual narrative. Crisis averted; scandal disremembered.
Not that what we see on TV and social media today on the events unfolding in Ukraine or Gaza or elsewhere are fictional. To the contrary, these are real events with real victims, real destruction, real misery, real consequences. But how much of what we see (and hear about what is being seen) should we believe? Most I suspect. Yet, most is not sufficient, just as close enough is not trustworthy in criminal proceedings where the evidence (as in any type of trial whether civil, commercial, or criminal) needs to be authentic and reliable – assuming it is relevant.
The process of determining the admissibility of evidence is rather straight forward. A foundation needs to be laid. The proponent will adduce evidence from witnesses who will testify as to the provenance of the evidence. In some cases, it may also be necessary to establish the reliability of the evidence through witnesses who have generated or collected and/or analyzed the evidence – before testimony on the substance of the evidence can/should be taken. Of course, before the evidence is admitted for the purposes of eliciting substantive evidence on what it purports to prove or disprove, the opposing side should be given an opportunity to conduct a voir dire, i.e., a cross-examination on the provenance, authenticity, reliability, and in some instances, the relevance.
Well, that is the general process in some common law traditions where a lay jury is the factfinder. Hence the precaution to lay a foundation first on the admissibility of the evidence before going to the substance. In civil law trials this is not an issue, since the judges, acting as factfinders, are “professional” and thus (supposedly) not susceptible to prejudicial but unreliable evidence (given their training, the judges intuitively can un-ring the proverbial bell).
Ditto for proceedings before the international(ized) criminal tribunals and courts. The evidence is admitted without much screening (especially when civil law judges preside) because it is not until all the evidence is in that it will be assessed. Naturally, the prosecution and defence counsel will/should make written submissions for or against the admission of evidence. The prosecution will have an easier task as it has in-house experts, plus the use of outside/domestic experts and crime labs. The defence is at more of a disadvantage. Depending on the availability of funds (yes, money does buy a good defence, as all of us would want for ourselves), it may not be able to appropriately challenge the authenticity and reliability of the evidence. Funds and resources aside, one needs to know what to look for, or better yet, how to look at such evidence, or even better, what sort of checks need to be made to ensure that the evidence is what it purports to be and what it is being proffered to be.
The old adage seeing is believing has merit. Philip Roth, the great American novelist, went so far as to say, “Seeing is believing and believing is knowing and knowing beats unknowing and the unknown.” Perhaps so. Less sanguine, University of Pennsylvania Professor of Communications Kathleen Hall Jamieson cautions, “The assumption that seeing is believing makes us susceptible to visual deception.” Architect and philosopher R. Buckminster Fuller is even more to the point –“Seeing-is-believing is a blind spot in man’s vision.”
Previously, in Defending in the age of open-source digital user-generated evidence, I wrote:
In this new brave world of digitalization and artificial intelligence – such as the text-generating ChatGPT, AI-synthesized “deepfakes”, and who knows what’s next in technological advancement – digital evidence will increasingly be challenged in arguing for or against the admission of evidence whose provenance, authenticity, and reliability is difficult to discern to a high level of certainty (beyond reasonable doubt). At the end of the day, however, the basic evidentiary rules and principles of foundations relevant to ordinary evidence are just as applicable – indeed, the nettles that must be grasped. The Berkley Protocol and Leiden Guidelines are useful, but without a deep and abiding understating of evidentiary foundations, the advocate is less likely to fully appreciate them.
In retrospect (thanks to this brilliant symposium I attended this past Saturday), I failed to mention some critical points. Besides having an abiding appreciation of evidentiary foundational principles, one must have an abiding appreciation of how exactly user generated and open source material is gathered, the various tools used in not just collecting but interpreting the material, and the pitfalls and shortcomings in generating and interpreting this sort of material – all of which come into play in supporting or challenging the authenticity and reliability of the evidence.
Of course, where does one begin to get the necessary general (holistic) knowledge needed to understand, identify, and focus on the specific knowledge required in dealing with the various types of user generated and open source material as the case may be? Making the rounds at conferences and talks, user generated and open source material is the plat du jour. Most of the ones I have come across tend to scratch the surface or have a mixed-bag of panelists, most of whom wax on anecdotally, offering little if anything concrete to the practitioner who must deal with evidence of this sort in the courtroom.
No disrespect to those who have organized conferences on user generated and open source material, but TRUE Project and Inner Temple’s 25 November 2023 symposium, “New Frontiers in Evidence” – The Admission of User Generated and Open Source Material, is the first serious and comprehensive symposium for legal practitioners. Hence, my retrospection on the previous post.
“New Frontiers in Evidence” was the result of months of preplanning with some of the leading experts in the field. It covered a wide range of topics from different perspectives. It also included mock trial hearings before a British court on user generated and open source material, the results of which were dissected by the participants (barristers and judges), all of whom are highly accomplished, all of whom I know and respect.
Inner Temple – one of the four Inns of Court in the UK providing legal education and training for the barrister profession with the exclusive right to call students to the Bar of England and Wales – hosted the all-day event, with International Criminal Court Judge Joanna Korner as master of ceremonies and moderator. It is always a treat to have a judge with vast practical experience in prosecuting and defending lend her insightfulness on issues and topics that are integral to the trial process. Throughout the day, her penetrating questions and witty comments (good judges know how to zero in on the nub of an issue), were appreciated. To say that the symposium was excellent would be putting it mildly. It was superb. Though I was unable to attend in person, it exceeded my expectations.
I will not summarize in any detail what was presented since that in and of itself would require considerable space. I will merely offer an amuse-bouche of the program with modest observations on what I found most interesting as a practitioner with keen trial advocacy interests in evidence and ethics in domestic and international criminal proceedings.
The symposium commenced in earnest with Judge Korner cogently setting the stage for the day’s presentations with her introductory remarks (full disclosure – she quoted from my blog post). Keynote speaker Eliot Higgins’s presentation on User-generated Evidence: Accountability & Disinformation was exceptionally informative. A journalist by profession, Higgins founded Bellingcat – an open source research and analysis platform of global events, which, without exaggeration, pioneered how open source material should be gathered, analyzed, and interpreted. I must confess, I was not aware of Bellingcat or of its association with the Global Legal Action Network (GLAN), which I knew of but never had reason to interact with; hence, in part, my general and (in)excusable ignorance of Bellingcat. The user generated and open source material I have had to deal with thus far has been limited to more conventional means, never requiring me to do a deep dive. Though I am generally skeptical of believing what I see on TV and social media, Higgins provided ample evidence why one must be guarded and vigilant before giving credence to user generated and open source material. Susceptible to manipulation, users (the parties relying on it in court or the judges in assessing it) need to know what to look for, what sort of questions to ask, and what type of corroborative evidence may exist – to give a full flavor of the authenticity and reliability of it.
With that backdrop, the first session – Admission and Evaluation of User Generated Evidence – got the ball rolling. Familiar with the work of Dr. Alice Liefgreen’s and Prof. Yvonne McDermott’s work (I had the privilege of discussing user generated and open source material in general for over two hours while they were conducting research), their presentation on Professional and Lay Factfinders’ Trust in User-Generated Evidence: Insights from the TRUE Project was a good refresher. The other two presenters, Dr. Jonathan Hak, KC, on The Search of the Truth in Open Source Evidence: Challenges, Limitations, and Opportunities, and Dr. Micheál O’Floinn on The Presumption(s) of Regularity and User Generated Evidence, were concrete and practical – very useful for practitioners.
The second session was on Ethics and Practice in the Collection and Preservation of User Generated/Open Source Evidence. This session was equally informative, covering practical and ethical aspects of the use of such material. Raquel Vazquez Llorente’s (WITNESS) presentation on Access to data and the European Digital Services Act: An Opportunity to Advance Justice and Accountability was equally as interesting as Andrew Finkelman’s (Meta) The Disclosure of Evidence for Atrocity Crime Prosecutions, and David Hasman’s (ICC) The OTP Link System. Lambros Fatsis’ (City, University of London) presentation on Rap Evidence in the Courts of England and Wales, threw me for a loop. I was not sure what to make of this. It was interesting (though it has been decades since I have worked on a gang related case), but hard to follow. Context was missing. Obviously, a topical issue in UK courts, but for someone like me coming from outside the UK, the presentation would have made more sense had the presenter been able to expand a bit – had he more time to do so.
The third session Investigative Methodologies deserves honorable mention for perhaps being the most practical session, generating an interesting array of questions. Building on what was presented in the previous two sessions, I found this session most relevant to practitioners dealing with the vagaries of user generated and open source material – whether trying to have it admitted or trying to have it excluded, and, of course, on assessing it for authenticity and reliability and weight. Moderated by Joshua Kern – my good friend and former legal consultant in the Prlić (ICTY) and 002 Ieng Sary (ECCC) cases, this was a highly useful session. The presenters were Ben Strick (Centre for Information Resilience) on The Collection and Preservation of User-Generated Evidence: Challenges and Opportunities, Dr. Alexa Koening on The Berkeley Protocol on Digital Open Source Investigations, Siobhán Allen (GLAN) on Key Admission and Evaluation Considerations, and Nick Waters (Bellingcat) on Case Studies on Authenticating User-Generated Evidence. This session generated excellent questions and an engaging discussion.
The fourth session dealt with Court Presentation of User Generated/Open Source Material. ICC Judge Solomy Balungi Bossa and UK Judge Ben Gumpert KC presented their views on user generated and open source material from their respective benches, while Sue Hemming (former Crown Prosecution Service Prosecutor and Head of the Counter Terrorism Division) gave the prosecution perspective. Of the three presentations, Hemming’s was by far the most interesting and insightful. Perhaps, here again is a situation where more time for the presenters might have made the session fuller.
The last session dealt with the mock trial proceedings I mentioned earlier. The discussion was highly insightful – though as I noted, considering the participants, I expected nothing less.
During the lunch break, three 45-minute workshops were held simultaneously – Preparing for the Future of Justice: Emerging Developments on Synthetic Media and Generative AI; Advocacy and Open Source Material: Success and Failure; and Verification Techniques. I cannot comment on these workshops, but this added feature also distinguishes this symposium from others.
Looking at the overall structure and content of the symposium, it is obvious that a great deal of preparation and forethought went into it. I do have two minor criticisms. First, too much in too little time; some topics and some presenters should have been allocated more time. I would have preferred that this tour de horizon symposium be stretched over two days. Second, I think it would have been useful to have included an international judge from a civil law tradition on how such evidence would be admitted and assessed based on their process (free evaluation of evidence) in light of the lack of strict rules of evidence applied at the international(ized) criminal tribunals and courts.
I am grateful to TRUE Project and Inner Temple for organizing this highly informative and enormously useful symposium. A Saturday well spent, even though for most of the day here in The Hague, from where I remotely participated, the sun was finally gracing us with its presence, albeit shyly, after hiding for weeks behind the dark and rain-heavy clouds.
Now that “New Frontiers in Evidence” has me motivated to dig in deeper into user generated and open source material, I look forward to a follow up symposium by TRUE Project and Inner Temple. Perhaps the next one can be more interactive. I would suggest having a mock demonstration of direct and cross-examination of witnesses and an expert. Prior to the demonstration, I would have a breakout session where the participants as a group can identify the factual predicates that need to be established or attacked. After the demonstration, as a plenary, the exercise can be deconstructed with each group listing the factual issues militating for or against the admission of the evidence.
In the meantime, be on the lookout for a post or series of posts in the near future on user generated and open source material.
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Important issues indeed.
One way to deal with reliability and authenticity of evidence in digital age particularly, is to shift simply, from admissibility to weight. Means, even if after the fact or retrospect, evidence seems to be flawed or unreliable, one can keep the option to grant it zero weight (or, as in many times, the fallacy itself, can generate important evidentiary or corroborative meaning). What is left then, is bias or partiality of one judge, and simply waste of time. Yet, advantages of such approach, can exceed every possible flaw in this regard, surly in the digital age.
Thanks