Finding the criminal within: the use and meaning of digital evidence at trial

How are our digital footprints used and interpreted in the courts? To answer this question, I analyze over 2,500 pages of trial transcripts for a keystone case in the use of digital surveillance at trial. Much like its use on both the front- and back-end of the criminal justice system, I find that it is used to link past actions to future ones. However, unlike previous research, I show that these conclusions are not drawn from actuarial modeling. Instead, the data are used to reveal – or refute – the defendant's true or innate self, free of outside influence. I identify five characteristics of digital evidence that are used to speak to both past criminal propensity, before clear signs of criminal intent emerge, or what I term criminal retrojection, and to future criminal engagement, or criminal projection. By examining the social capabilities, or affordances, ascribed to digital evidence in the adjudication process, we see how these data do more than sort an ever-growing pool of 'risky' individuals. They also skirt thorny claims of innate criminality by providing a technoscientific basis for the impossible: foretelling inevitable criminal futures through our digital pasts.