quintessential proof of law until the Enlightenment was the
confession. The expressions become literally true when uttered,
when admitted ("I act under the influence of the Devil" in a
process before the Court of the Holy Office, for example).
In a world that aspires to know itself scientifically, on the
contrary, a different approach to truth emerges. The truth is the
measure, it is what results from the technical instruments: It is
an essentially documentary truth.
Therefore, as we have said, the criminal justice process is based
on the discovery of the material truth (but not the civil process,
which continues to be inspired by the idea of the parties as
owners of the process and, consequently, as owners of the
"truth" that it is none other than what they themselves want to
express (iuxta ALLEGATA et probata partium).
This material truth, naturally, can always be compromised
through deception (intentional, negligent, or involuntary—such
as the one who deceives himself), and that is why there is the
evidentiary phase that must be conducted in court, and
documentary evidence (written, recorded) rise to a position of
eminence, along with experts as adjudicators of scientific truth.
This classic approach has been called into question on two levels
recently. On the one hand, technological development has
completely exceeded the capacity of the common citizen (and
even of justice officials) to understand it. From the CSI effect
(the irrational belief in the ability of science to solve cases), to
the perplexity of the judge before apparent incontrovertible
evidence that turns out to be mere technological montages (the
deep fake) or the verification of the racial or gender bias of the
presumably infallible and innocent algorithms, has placed the
evidence phase in a state of indeterminacy in which, as
everything is possible, personal and social motivations, etc., end