Big Data in Criminal Justice – Few Chances and Serious Risks
published: July 24, 2017, recorded: May 2017, views: 1060
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Starting from the Foucauldian concept of the “regime of truth” in criminal justice this paper will present findings of a case study analyzing a complex organized crime case in Germany were huge amounts of digital data have been introduced into evidence. As findings show Big Data Evidence (BDE) are about to alter the traditional way professionals in law enforcement and criminal justice act in the evidentiary process. First, some light will be shed on the BDE challenges for the investigation and analysis of serious criminal cases and possible shortcomings of training and practice of crime analysts in, e.g., Computer-Aided Qualitative Data Analysis (CAQDAS) to reliably assess the probative value. Second, the new situation for lawyers at trial will be considered. Most current lawyers (in Germany) have a blind spot when it comes to empirical analysis of digital evidentiary mass data retrieved from ICT-devices or collected by means of electronic surveillance. There is in particular no clear understanding regarding the way how information is produced from these digital data, eventually forming evidentiary knowledge and needed to apply substantive law in a credible manner. Third, serious risks will be discussed which arise in light of BDE from the mismatch of criminal procedural frameworks and practical requirements in the analysis by legal experts. Moreover, BDE tends to create what data science calls “ambient intelligence” which jeopardizes basic principles of modern criminal law such as “presumption of innocence”, “equality of arms” or “public trial” – if not handled properly at the levels of legal education, judicial practice and law-making. Finally, some suggestions should be offered on how to conceptualize truth-finding and BDE and how to limit the risks for a fundamental human rights and rule of law centered approach in criminal justice.
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