This paper motivates and studies the feasibility of a new digital right to procedural accuracy (RPA) for digital evidence processing in criminal investigations. The need to guarantee a new principle of procedural accuracy under Art. 6 of the European Convention on Human Rights (ECHR) is based on the concern that digital forensic science and AI technology have a significant impact on individuals’ rights in criminal proceedings, which are neither coherently nor comprehensively addressed. The personal and material scope of RPA are examined and include: (i) protection against unreliable digital evidence processing; (ii) right to access the chain of evidence, explanation, and forensic assistance; and (iii) the right to participate in the determinative stages of the digital evidence processing. Limitations of the RPA are also discussed.

Digital evidence and digital forensics have a significant impact on criminal investigation. This requires an examination if the fair trial principle remains sound in the new domain. In this paper the right to a fair trial in Art. 6 ECHR and its interpretation in case law is analysed in order to clarify its connection to evidence law and its specific application to the investigation stage of criminal proceedings. It is argued that the principle implicitly enshrines a framework for the development of universal evidence rules . Derived are two-groups of evidence rules: equality of arms based and presumption of innocence based. For each group specific challenges in the digital investigation are outlined and discussed in the context of a new governance model for digital evidence.

Reverse engineering of file systems is indispensable for tool testing, accurate evidence acquisition, and correct interpretation of data structures by law enforcement in criminal investigations. This position paper examines emerging techno-legal challenges from the practice of reverse engineering for law enforcement purposes. We demonstrate that this new context creates uncertainties about the legality of tools and methods used for evidence acquisition and the compliance of law enforcement with obligations to protect intellectual property and confidential information. Further identified are gaps between legal provisions and practice related to disclosure and peer-review of sensitive digital forensic methodology, trade secrets in investigations, and governmental vulnerability disclosure. It is demonstrated that reverse engineering of file systems is insufficiently addressed by legislators, which results in a lack of file system interpretation and validation information for law enforcement and their dependence on tools. Outlined are recommendations for further developments of digital forensic regulation.

Contemporary criminal investigation assisted by computing technology imposes challenges to the right to a fair trial and the scientific validity of digital evidence. This paper identifies three categories of unaddressed threats to fairness and the presumption of innocence during investigations – (i) the inappropriate and inconsistent use of technology; (ii) old procedural guarantees, which are not adapted to contemporary digital evidence processes and services; (iii) and the lack of reliability testing in digital forensics practice. Further, the solutions that have been suggested to overcome these issues are critically reviewed to identify their shortcomings. Ultimately, the paper argues for the need of legislative intervention and enforcement of standards and validation procedures for digital evidence in order to protect innocent suspects and all parties in the criminal proceedings from the negative consequences of technology-assisted investigations.