Things are not always as they seem; the first appearance deceives many.

—Phaedrus

In this endeavor, scientists have developed new kinds of detectors, one of which is known as the extreme ultraviolet color detector. At one point in its development, the device “hallucinated” a very bright spot. When it was turned off and on again; the bright spot (a speck of dust on the lens) that had been detected had disappeared. Similarly, when NASA first turned on its Extreme Ultraviolet Explorer satellite, it revealed thousands of stars that had never been catalogued. Each such discovery had to be double-checked to be sure that the machine was not “hallucinating.” It took a few hours to point the telescope to the same location, and, in some cases, the bright star was no longer there. Yet, without such verification the results could never have been announced to the scientific community.

Despite such occasional setbacks, the scientific community has gone through centuries of evolutionary steps in the extension of the senses (for example, the development of microscopes and telescopes), augmentation of the senses (through X-ray imaging), and development of new sensory inputs that cannot be derived from extension or augmentation of the senses (gravitational wave observatories). Thanks to such innovations, for example, we now know that our bodies “shrink and expand” at very small scales that none of the human senses can be augmented or extended to study.

On the societal level, for as long as anyone can remember (in the law this is referred to as “time whereof the memory of man runneth not to the contrary”) courts have depended almost exclusively on evidence that is elicited by the five human senses: sight, smell, sound, taste, and “feel” (which includes, “rough,” “heavy,” “light,” and so on). This has been axiomatic in the judicial process until the advent of science and the expert testimony that follows it. Triggered by the end of World War II, the steady advance of technology has extended the perceptual capabilities of the senses beyond what could have been imagined before then. In other words, the question has become, “Is this real, or is it merely a fabrication enabled by technology?”

Put another way, “The issue is actually the shift from knowledge, as an attempt to understand reality, to data as a description of reality. We don’t need to know, we only need to measure—this is the process we are experiencing.”[1] This data is often “translated” into forms of data that human senses can grasp. Further, it has been noted that “we have gone from an age that was meaning rich but data poor, to one that is data rich but meaning poor. . . [, and] this is an epistemological revolution as fundamental as the Copernican revolution.”[2] As a result of this shift, there has been a growing tendency to look to technology to “fill in” what our senses cannot provide. A consequence of this is that we tend to have excessive trust in the data provided by machines.

This is analogous to the parallax effect that impacts the perception of an object in three-dimensional space, based upon the position of the viewer. On a more fundamental level, historically, the definition of reality has been essentially a binary concept directly opposed to the imaginary or the abstract. Plato outlined this clearly in the Allegory of the Cave.[3] In the Allegory, the focus was on the contrast between what the mind saw, and the source of that vision. To the modern reader, the shadows on the wall of the cave are not to be confused with the physical items of which they were merely shadows. . . yet, to the viewers whose heads were immobilized, these shadows were “real.”

In the modern world, the omnipresence of technology and its advances raises the question of where to draw the line between “perception” and “reality” in the presentation of evidence before a court.

Part of the problem is that recent studies have shown how flawed eyewitness testimony can be. Since the emergence of modern science, the extent of the fallibility of human memory has become well known. Indeed, the mere phraseology of the questioning by a police officer could impact the accuracy of the memory of the witness.[5] Clearly, the concept of “proprioception” would alter the perception of information received by a witness through the normal senses.[6] Further, the ability to distinguish between true memory, and a false memory that has been made to seem true, undercuts the concept of authenticity that should be in front of the judge or jury.[7] In modern parlance, this would be “gaslighting” the witness, and perhaps the court, with the aid of technology.[8] Once that line is crossed, the question is presented as to whether the witness will be able to return to an authentic memory of the event.[9] Thus, it is through the “default” that the technology enters the gate to impact the “liberal artist” judge.

This presents the two-fold issue of the source of the evidence and the method by which it is adduced. Not only does this reflect the double-edged sword of technology in the judicial process, but it highlights the willingness of judges and juries to default to the machine in order to reach a verdict. As Tacitus once said, “Because they didn’t know better, they called it ‘civilization,’ when it was part of their slavery [idque apud imperitos humanitas vocabatur, cum pars servitutis esset]”.^[10] Such a default necessarily should give rise to an examination of the machine, its programming, calibration, and the method of its operation as part of laying the foundation for the introduction of technoevidence in court.

Technoevidence is defined simply as information that would not be available to the trier of fact (whether judge or jury) no matter how smart the witness, in the absence of modern technology. The scientifically logical, and legal, corollary is that it should be evidence that cannot be adduced by the employment of sheer brain power by a human being. Indeed, humans are not well designed if they are to “understand” the world. The trustworthiness of such evidence will necessarily be based upon technological considerations. In this circumstance, the precision of the evidence will likely be directly dependent upon the sophistication of the instruments employed to analyze the factual input.[11]

Figure 1 illustrates the vector by which technology can, and does, impact both the sourcing and production of evidence in the modern world.[12]

The chart is derived from a study of molecular biology and illustrates “oriented flow,” in this case from the lower left to the upper right. The circle in the center, “The Cheese,” represents the range of phenomena that normally can be perceived by human senses. These are sight, smell, sound, taste, touch, without technological augmentation.

To the lower left are “nano” matters that cannot be perceived independently by the senses without technological assistance. This represents the lower end of the technoevidentiary trajectory. As the “flow” moves across the circle toward the upper right-hand corner, the perceptive range of the observer becomes steadily broader. The evidentiary picture has evolved in complexity from the microscopic to the visible, then to the “macro,” if not galactic, scale. It is true that much of the evidence in a conventional trial will be confined to the circle. On either side of the circle, though, technology may well be of importance in the presentation of the “facts” that comprise the case at hand. It follows that the farther away from the circle in either direction is the source of the information, the greater is the need for technology. That portion of the chart that is outside the circle while being on the vector represents the field in which technoevidence moves from being an assistant to becoming dominant.

The simplest example in modern times, DNA, found at the lower left-hand side of the diagram, is a factor in the resolution of many types of lawsuits. The most obvious are criminal cases, particularly those involving rape. Since the early 1990s, there has been a trend of acquittal in up to 95 percent of rape cases where the DNA evidence was either inconclusive or non-existent. On the other hand, evidence supporting conviction almost always included DNA linking the defendant to the event. The advance of technology, however, has altered those trends considerably. In cases where the DNA was at the base of the conviction in the 1990s and early 2000s, there has been a recent effort to re-examine the samples. It is this presence or absence of forensic evidence that gives rise to the “CSI Effect” in criminal cases.[13] The result has been that, with the increased precision of the definition of the markers in the genome, there has been a startling number of reversals of rape convictions from the earlier days.

In a somewhat more practical context, the examination of DNA also has become crucial in the determination of parentage. A child inherits the genetic characteristics of its parents, as transmitted through DNA. The mother’s DNA, or mtDNA, can clearly determine who the mother is. The other component of the child’s DNA is from the father. The problem arises when there is more than one claimant to male parentage, so that the court must obtain DNA from all of the candidates to determine who is the father. This has the practical effect of determining who is going to support that child into adulthood.

While that sounds simple enough, the technology that allows for the close examination of the human genome also allows for the modification of the genome prior to birth in order to remove certain genetically transmitted defects, such as those for sickle cell anemia or a tendency to high cholesterol. In such a case, the question would be whether such a modification alters the determination of who the father might be. At the present time, such modifications are highly experimental and, in some parts of the world, illegal. Even so, close regulation, such as the prohibition of such experimentation on an embryo prior to the passage of fourteen days, can allow some experimentation in some jurisdictions. That said, there is an argument that prenatal genetic engineering could very well lead to a healthier human population globally. A potential problem with that, however, is that to engineer humanity to meet the problems of the current environment may expose the species to extinction if that environment should change radically. The dinosaurs are instructive in this matter.

In the “macro” level of the evidentiary spectrum, the modern tendency is to employ what is generally referred to as “artificial intelligence” or “AI”. Setting aside the oxymoronic nature of the phrase, at its most basic, this concept can be defined as the cyber extension of human intelligence as augmented by at least one other computer. To that extent, the human factor has the potential simply to disappear, as the computer complex performs its own analysis in response to the algorithms supplied by the last human to operate the machine. The flaws in such a concept as to the authenticity of the output are self-evident.

There is an increasing tendency to use AI software to draw conclusions from data, but without being able to explain how the discovery was made in the first place so that it can be repeated and verified by others. There is even a view that the software be named a co-author of the discoveries. Considering the wide range of software creators and operators who may have had input to a given machine at any particular time, the evidentiary gatekeeper can be at sea.

Most recently, the advent of “chatbots,” such as ChatGPT, has become fashionable in the day-to-day operation of the practice of law. This form of “research assistant” is both fast and convenient in terms of its ability to search data bases or compose documents, and some lawyers see it as transformational.[14] This debate, a very timely one in the legal community, is already injecting caution into the discussion relative to the authenticity of what the chatbot discovers.[15] There is a further problem arising from the distinction between digital and analog data. Since the chatbot searches digitally and not by analog means, the potential for manipulation of the data that is retrieved is considerable. The point is that the product of a chatbot search that is digital in origin should be viewed at the outset with caution.

There is an increasing tendency to use AI software to draw conclusions from data, but without being able to explain how the discovery was made in the first place so that it can be repeated and verified by others.