AI and Criminal Proceedings: Challenges and Defenses Against Algorithmic Evidence
The emergence of Artificial Intelligence (AI) in the forensic and judicial spheres is not science fiction; it is an operational reality that poses unprecedented constitutional challenges. As a leading criminal law firm, at Alonso Sala we are observing an exponential increase in the use of algorithmic tools in both police investigations and the generation of prosecution evidence. This forces us to rethink traditional defense strategies and incorporate advanced technological expertise to ensure the right to a fair trial.
Predictive Policing and Algorithmic Bias
Law enforcement agencies are increasingly using "predictive policing" algorithms (such as the VioGén system for gender violence risk or VeriPol for false reports) to make decisions that affect personal liberty. The problem lies in the "black box bias". These algorithms are trained on historical data that may contain racial, socioeconomic, or gender biases. If the police arrest or investigate a person based on an "algorithmic alert", the defense must demand the traceability and auditing of the algorithm.
It is not enough for the police report to say "the system indicated high risk". We demand to know the input parameters and the decision logic. If the algorithm is opaque, the right of defense is violated, as one cannot contradict evidence whose operation is hidden under trade secrets.
The Threat of Deepfakes as False Evidence
Generative AI allows the creation of synthetic audio and video (deepfakes) indistinguishable from reality to the human eye. This introduces reasonable doubt about any unauthenticated digital evidence. In family proceedings, fraud, or defamation cases, we have seen attempts to provide cloned voice recordings to falsely incriminate a party.
Deepfake Challenge Protocol
Our strategy against suspicious recordings involves an immediate computer forensic analysis that analyzes not the content, but the "digital background noise", frame inconsistencies, and audio spectral metadata, unique to synthetic voices.
Towards an Algorithmic Defense
Paradoxically, AI is also a tool for the defense. We use massive data analysis software (Big Data) in macro-corruption or economic crime cases to process terabytes of information (emails, invoices) in hours, looking for exculpatory evidence that would be humanly impossible to find. Equality of arms in 21st-century criminal proceedings requires that the defense has the same technological capacity as the Prosecution.
The European AI Regulation
With the approval of the EU Artificial Intelligence Act, certain uses of AI are prohibited (such as real-time facial recognition in public spaces for law enforcement purposes, with very serious exceptions). As lawyers, we monitor that these red lines are not crossed by the investigation, requesting the radical nullity of any evidence obtained through prohibited or high-risk AI systems that have not passed mandatory conformity assessments.