Application of artificial intelligence (AI) in the assessment of the credibility of statements in the cross-border taking of evidence in civil and commercial matters

Abstract

Regulation (EU) 2020/1783 on ‘cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters’ introduces taking evidence by videoconference or other distance communications technology as the “gold standard” in the process of direct cross-border taking of evidence by examining a person who is present in another Member State. This represents a step forward compared to the previous Regulation 1206/2001, as the provision for direct evidence taking through videoconferencing was rarely applied in practice. The direct taking of evidence through videoconference contributes significantly to the realisation of the principle of orality and immediacy in civil proceedings, as opposed to indirect methods of cross-border taking of collection. On the other hand, a question arises whether the principle of immediacy is weakened by using videoconferencing, given that there is a “digital barrier” between a witness and the court. When assessing the credibility of the statements made by parties, witnesses, and experts, psychological criteria in addition to logical criteria plays an important role in shaping the court’s opinion on the truth of the assertion regarding the existence of certain facts. As a solution for consideration, there is a possibility of using an artificial intelligence sytem to detect deception during the direct taking of evidence by examining parties, witnesses, or experts. However, the admissibility of the above solution should be considered as a multi-faceted issue, particularly regarding aspects of the right to a fair trial, personal data protection rules, and the proposed provisions of the Artificial Intelligence Act.