Reform Aims to Stop Uninformed Dismissal of Digital Evidence

The Mexican Senate is analyzing a reform to the National Code of Criminal Procedure to prevent the dismissal of digital evidence based on subjective assumptions of algorithmic manipulation. Proponents argue that a legal vacuum allows jurisdictional bodies to reject key evidentiary material without requiring specialized technical expertise. This legislative solution proposes the mandatory use of expert reports to validate or dismiss the authenticity of electronic files in judicial processes.

“Today a judge can reject a key video just because it ‘could’ have been altered with AI, without any expert report. That is extremely serious,” says PRI Senator Claudia Anaya. She points out that this follows a recent case where a 39-minute video showing aggression and the use of tear gas against a female detainee was discarded, La Gazzeta DF reports.

Under the current landscape of procedural digitalization, digital evidence that can be discarded at judicial discretion includes documents in electronic format, including PDF and Docx files, emails, messages from electronic channels or social networks, and audio and video recordings. According to a report by the Professional Services Innovation Center, the digital signature is recognized with the same validity as a physical signature in most cases. However, the emergence of AI has created a phenomenon known as the shield of artificial doubt.

This phenomenon allows a judge to claim, without technical support, that authentic evidence is a product of algorithmic manipulation, or a deepfake. The Federal Court of Fiscal and Administrative Justice, in its study on the evidentiary value of digital documents, indicates that while the implementation of Information and Communication Technologies (ICT) has reduced resolution times from 220 to 128 business days, legal certainty depends on the Advanced Electronic Signature (FEA) and forensic analysis tools.

Technical Details of the Reform to Article 265 of the CNPP

The initiative presented by Anaya seeks to add a second paragraph to article 265 of the National Code of Criminal Procedure. The text establishes that the jurisdictional body will freely assign the corresponding value to each of the data and pieces of evidence. The reform intends to limit this discretion, forcing judges to base the rejection of digital evidence exclusively on objective and verifiable criteria through the assistance of technical studies.

Given these characteristics, jurisprudence has suggested that reliability must be guaranteed through computer expert reports. Nevertheless, recent judicial practice shows that judges often show a lack of high-technical understanding in technology or different AI tools, leaving victims in a situation where they could lose multiple pieces of evidence given the extremely high rate of digitalization in the country, where 98.9% of internet users aged 16 to 64 own some type of mobile phone.

The legislative proposal establishes that:

1. No jurisdictional body may discard digital evidence based on subjective doubts regarding its authenticity.

2. It is mandatory to have a technical report issued by a specialist before dismissing audiovisual or electronic material.

3. The function of imparting justice must be performed based on objective and verifiable criteria to avoid decisions taken from personal suppositions.

The Federal Court of Fiscal and Administrative Justice highlights that the dematerialization of the trial is an irreversible step toward modernization. However, it warns that the lack of homology in the recognition of the FEA by various administrative authorities generates legal insecurity. This reform, argue its proponents, is a necessary measure to align criminal regulations with technological reality.

Why is Digital Evidence so Important?

The incorporation of digital evidence into the justice system has been a slow process fraught with technical obstacles. On occasion, judges' lack of knowledge about the digital chain of custody or their dismissal of such evidence as "manipulable" has led to controversial rulings.

A well-known case is that of Amanda Knox. During the trial for the murder of Meredith Kercher in 2007, the prosecution used Knox's computer and phone records to argue that she was not where she said she was. They claimed that there was no activity on her computer during the hours of the crime, suggesting that she was participating in the murder.

Independent experts proved years later that the forensic tools used by the Italian police misinterpreted the timestamps. The computer did record activity (playing movies and files) that matched her alibi. Knox spent four years in prison before a rigorous technical review of the digital evidence helped secure her eventual exoneration.

In Mexico, student Diego ‘N’ was accused of altering photos of his classmates using AI to create deepfakes. Since the images were not "real," some argued that they did not constitute child pornography or traditional invasion of privacy.

The lack of protocols to validate the traceability of digital files on the defendant's tablet allowed the defense to question the integrity of the evidence. After being acquitted once, he was subsequently sentenced to five years in prison for the crime of child pornography.