At certain criminal accountability mechanisms, such as at the International Criminal Court (ICC), the Prosecutor has a statutory obligation to investigate inculpatory and exculpatory circumstances equally. The classification of evidence as exculpatory or inculpatory will depend on a number of factors, including the charges confirmed and the identity of the potential suspects and accused.
Looking ahead to collected audio data’s potential use as evidence, the Collector should ensure audio data is treated neutrally once it is collected and retained, i.e. all data should be treated in the same manner, regardless of whether it is considered as potentially inculpatory or exculpatory. ‘Treat’ in this context applies to the way in which the data is handled after collection, specifically in the processing phase of the collection effort. The Collector should bear in mind any potential suspect or accused’s fair trial guarantees, as well as issues regarding equality of arms, and should implement safeguards against the existence or perception of bias in the collection effort.
The Collector should ensure its personnel are adequately trained to treat all data equally. The Collector should moreover ensure that any data that is marked for deletion is thoroughly reviewed, in accordance with BP 17. This is designed in part to prevent potentially inculpatory or exculpatory audio data from being deleted.
Legal Framework
See section 4.3. detailing the rights of accused persons in connection with the right to a fair trial, in particular the right to be given exculpatory material.
See also Article 54(1)(a) of the ICC Statute, which provides the duties of the ICC Prosecutor to investigate incriminating (inculpatory) and exonerating (exculpatory) circumstances equally: ‘The Prosecutor shall (…i)n order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.’
Applicable Ethical Principles Accuracy, Impartiality, and Objectivity.