The Criminal Judge's Power in Evaluating Digital Evidence between Judicial Abstention and Scientific Certainty "A Comparative Analytical Study"

Abstract

The integrity of a criminal judgment is fundamentally built upon the soundness of evidence evaluation. Digital evidence, much like any other form of evidence, is subject to established legal rules—whether those governing the judge's authority in admitting evidence or their discretion in assessing its probative value. This issue involves two distinct dimensions: the availability of sound evidence, and the personal and scientific background of the judge, which varies among judges. Consequently, digital evidence in practice offers no more than the purpose for which it is intended, because the faculty of perception regarding such evidence is exercised by the expert rather than the judge, whereas the faculty of judgment remains exclusively with the criminal judge—unlike traditional evidence where both faculties (perception and judgment) are exercised by the judge alone. To bridge the gap between these two faculties, comparative jurisprudence has established limits and controls on the discretionary power of the criminal judge in evaluating digital evidence, unlike Libyan jurisprudence, which has not explicitly defined them. To address this gap, this study outlines the limits and controls governing the exercise of the criminal judge's discretionary power in evaluating digital evidence.