We examine the use of digital evidence in cases handled by the International Criminal Court (ICC) at different stages of the proceedings, both theoretically and empirically, and how the parties use it. Our theoretical findings indicate that the extent to which digital evidence is used versus classical evidence may increase or decrease with the stringency of the standard of proof. This variation depends on the cost of gathering evidence and the degree of complementarity between digital and classical evidence. Our main empirical findings are as follows: i) the intensity of references to classical evidence increases more than that of references to digital evidence between the pretrial and trial phases; ii) the prosecution appears to rely more on digital evidence than the defense; iii) there is a positive correlation between the emotional tone of the prosecution and the defense, but no correlation between their emotional tone and the reference to either types of evidence.
Lecorps et al. (Tue,) studied this question.