The defense counsel of former President Rodrigo Duterte has asked the International Criminal Court to amend its E-Court Protocol to add an “Expert Verification” field to help ensure the proper vetting of the large volume of digital evidence submitted for his forthcoming trial.
Defense counsel Peter Haynes made the request as he raised a concern that “the quality and quantity of the evidence in this case risks flooding the record with unreliable and/or irrelevant material.”
Haynes reported an over 400 percent increase in the volume of evidence that the prosecution has disclosed since the end of the confirmation stage of his crimes against humanity case.
He said that from 5,000 items, the number has grown to 25,000, and noted that many of them were illegible or consisted of audiovisual materials without transcripts or translations. The prosecution also indicated a plan to disclose an an additional 200GB of material.
He said providing the URL of a piece of open source evidence is insufficient to assess its authenticity or reliability because the URL only records the web location, not the actual source.
The URL also does not provide information about the discovery process, which is need for the chain of custody, and does not indicate if the item has been edited and whether it has been independently verified.
The open source information may not even have been posted online because the definition adopted by the court extends to “user-generated evidence” coming from personal digital devices.
Haynes said an “Expert Verification” metadata field should be added in relation to open source and user-generated evidence to confirm if the item is accompanied by an expert report if it is to be submitted as evidence.
He proposed that expert verification reports should always accompany open source and user-generated evidence submitted, and they should include information on the source of the item, its chain of custody, metadata and any other technical aspects, and steps taken to verify the material and to check for editing or manipulation.
Also to be included are information on the qualifications and experience of the person who carried out the verification and the methodology used.
“Without this information, it would be very difficult for the Chamber to come to a view on the evidence’s relevance and admissibility, pursuant to Article 69(4) of the Statute,” he said.
He also said the risk of the case being overwhelmed by dubious material is particularly pertinent given that the Philippines has over 70 million smartphone users, with people following the proceedings and engaging online in unprecedented volumes for an ICC case.