In December 2024, Broward County Circuit Court Judge Andrew Siegel presided over a stand-your-ground hearing involving defendant Miguel Albisu, owner of the wedding venue Cielo Farms. Albisu faced charges of aggravated assault with a deadly weapon after allegedly brandishing a firearm at guests during a March 2023 wedding reception. The incident reportedly stemmed from a dispute over the event’s ending time, with Albisu insisting on a 10:30 PM conclusion, while guests believed they could remain until 11:00 PM. Tensions escalated, leading to Albisu confronting the attendees with a gun, an act captured on video where he was heard shouting, “Get out!” In an unprecedented legal move, Albisu’s defence attorney, Ken Padowitz, introduced a virtual reality (VR) reenactment of the events to support Albisu’s self-defence claim. Using an Oculus Quest 2 VR headset, Judge Siegel experienced a 3D simulation from Albisu’s perspective, aiming to provide the court with an immersive understanding of the defendant’s viewpoint during the altercation. This marked the first known instance of VR technology being admitted as evidence in a US courtroom.

The integration of VR in this case has ignited discussions about the future of evidence presentation in legal proceedings. Proponents argue that VR can offer a more nuanced and comprehensive understanding of complex scenarios, potentially leading to more informed judicial decisions. However, concerns have been raised regarding the potential for emotional bias, the accuracy of such simulations, and the ethical implications of their use. Legal analysts emphasise the need for rigorous standards to ensure that VR evidence is both accurate and impartial, cautioning against the possibility of such technology unduly influencing judges.

In theory such technological innovations can serve as powerful aids in the reconstruction of crime scenes, assessment of witness credibility, analysis of cognitive states, and offer crime scene perspectives that cannot be communicated by traditional evidence. Similarly, insights into the emotional state and memory of an individual can be provided by neurotechnology, such as brain imaging, providing new insights into the circumstances of a case. Combining the immersive characteristics of VR with the analytical precision of neurotechnological data may in future allow courts to create comprehensive reconstructions of events that integrate spatial and temporal detail as well as cognitive and emotional insights. For example, in the above case, the VR construction may not only provide the court with an immersive understanding of Albisu’s viewpoint during the altercation but combined with data collected with the help of additional neurotechnologies, it could also provide the court with information about the Albisu’s fear response or decision-making processes during the critical moment. Such evidence could significantly strengthen the claims of duress or necessity of actions taken in self-defense, or it could similarly demonstrate inconsistencies by revealing fabricated narratives between the claimed mental state and the neural evidence presented.

Resting a case in reality     

The introduction of VR and neurotechnology into criminal trials presents significant potential but also raises profound legal and ethical challenges. In South Africa, The Electronic Communications and Transactions Act 25 of 2002 (ECTA) and the Criminal Procedure Act 51 of 1977 (CPA) both address the admissibility of electronic evidence, with the CPA explicitly referencing business records and allowing certain exceptions to the hearsay rule (e.g., Section 221 for authenticated business records). In the case of electronic evidence, the courts focus on the need for it to be authentic and relevant. The courts must also evaluate the weight of electronic evidence, considering its generation, storage, and the reliability of the data. The admissibility of novel forms of evidence, such as VR, is governed by Section 210 of the CPA which stipulates that evidence must be relevant and material, serving to prove or disprove a point in issue. This provision underscores the need for evidence that can contribute meaningfully to the case at hand.

Historically South African courts took a cautious approach towards electronic evidence, influenced by concerns about the ease of altering electronic data. However, as technology has advanced, the courts have gradually adapted their approach. Case law, such as S v Harper and S v Brown, illustrates how courts have treated electronic evidence. In S v Harper, the court ruled that while a computer cannot be considered a document, a printout from a computer can be categorised as a document for the purpose of the CPA. In S v Brown, the court noted the challenge of categorising electronic evidence as either “real” or “documentary” evidence, underscoring the importance of treating such evidence with caution. The court also found that all electronic evidence should not automatically be deemed hearsay, which would inhibit its admissibility. Instead, each case should assess whether the evidence is authentic, relevant, and consistent with established rules for document-based evidence technologies in criminal trials, these findings suggest that while electronic evidence (including VR simulations and neurotechnologies) may be admissible, their authenticity and relevance would need to be thoroughly evaluated in each case. The technology must be authenticated to meet the standards of evidence and satisfy.

While the use of electronic evidence, such as video conferencing, has been allowed in specific contexts, primarily to facilitate testimony from vulnerable witnesses or those unable to attend court in person, these instances are limited. Section 158 of the CPA permits evidence to be given via “closed-circuit television or similar electronic media” under conditions that protect the interests of justice. In this context it has been argued that while the orality or confrontation paradigm has been essential for ensuring fairness and accuracy in criminal trials, it has become increasingly difficult to justify given its shortcomings in fact-finding and the well-being of vulnerable witnesses. Jackson explored how technological advancements such as video links, pre-recorded cross-examinations, and the use of remote testimony can enhance the trial process without undermining the accused’s rights. However, the also critiques the trend toward virtual trials, emphasising the need for a balance between efficient trial management and protecting participatory rights. The right to cross-examine witnesses and to give evidence in person are vital to maintaining the legitimacy of the trial process. Similarly, the potential introduction of VR evidence into South African courts would, therefore, require a careful assessment of its relevance, authenticity, and the potential prejudicial impact it might have on the trial.

A primary concern when integrating VR and neurotechnology into the judicial process is the protection of the right to a fair trial, as outlined in Section 35 of the Constitution. This includes the ability to challenge and cross-examine evidence. The use of VR simulations and neurotechnologies could challenge traditional norms for presenting and scrutinising evidence. While VR simulations may seem to offer an unbiased, objective recreation of events, they are still influenced by human interpretation. The assumptions of the developer, the selective inclusion of data, and the limitations of the technology can all introduce bias. This could potentially deny the accused the ability to challenge the evidence fully, infringing on their constitutional right to a fair trial.

For a trial to be fair, the presentation of evidence must be transparent, ensuring full disclosure of the limitations of VR and neurotechnology. The accused must be made aware of these limitations to prevent any undue disadvantage that might arise from the perceived infallibility of these technologies. Despite their scientific appeal, VR and neurotechnology can be prone to interpretation errors and may only offer probabilistic insights rather than definitive conclusions.

The authenticity of VR simulations also presents a critical consideration. For these technologies to be admissible, the court must be satisfied that the VR representation accurately and fairly depicts the events in question. This may require expert testimony to verify the simulation’s accuracy and to explain the technology behind it to the court. Section 212 of the CPA mandates that evidence must meet prescribed criteria, ensuring that it assists the court in reaching a just verdict without misleading or causing unfair harm to the accused. VR simulations must adhere to this standard, providing an accurate and complete representation of the facts without distortion. This includes ensuring that the data used to create the simulation is free from manipulation or selective presentation, which could exaggerate or obscure key facts and ultimately mislead the court.

To safeguard against the misuse of VR simulations, both the defence and prosecution must agree on the methods and data used in creating the simulations. Failure to do so could lead to inaccurate or overly dramatised reconstructions, potentially influencing the cognitive or emotional biases of the judge. Such bias could undermine the fairness of the trial and contribute to miscarriages of justice.

Similarly, the application of neurotechnology within the judicial system must fulfil the requirements of scientific reliability as outlined in Section 219A of the CPA, which allows for expert testimony. In other words, prior to the admission of any neurotechnological data as evidence, the scientific validity of this evidence must be confirmed through peer-reviewed methodologies and based on accepted scientific standards. This evidence can be contested if the neurotechnology used is unreliable or if the methods used to obtain neural data are flawed or questionable. It is also essential that expert testimony is not misleading or speculative, as mandated by Section 219B of the CPA. The misappropriation or misrepresentation of this data can lead to significant legal consequences due to the court placing undue weight on faulty or incomplete scientific evidence.

Conclusion

While the use of VR technology in courtrooms, as demonstrated in the Florida case, offers innovative possibilities for evidence presentation, its admissibility in South African courts would require careful consideration. The existing legal framework provides a basis for evaluating such evidence, focusing on relevance, authenticity, and the balance between probative value and potential prejudice. As technology continues to evolve, South African courts will need to adapt and develop guidelines to ensure that such innovations are integrated in a manner that upholds the principles of justice and fairness.