Judge and Jury Perceptions of Open Source Evidence

Abstract

Open source evidence has come to play a central role for our ways of knowing about human rights violations and atrocity crimes. Yet, little is known about how judges and juries assess and evaluate such evidence. This chapter presents unique empirical insights from qualitative interviews with international judges, and from a fictional jury trial designed to explore lay factfinders’ perceptions of open source evidence. It examines the perceived limits of open source evidence, source credibility and source bias, and factfinders’ perceptions of the role of expert testimony. The chapter reveals that factfinders are conscious of the limits of open source evidence and emphasize the need for corroboration in view of those limits. They consider the source of open source evidence, and their potential bias, as important in their assessment of the evidence. Expert testimony is also seen as crucial, although questions remain about who qualifies as an expert and what kinds of expertise are required in a rapidly-evolving field