Digital evidence plays an increasingly important role in contemporary criminal proceedings in
the Netherlands. Various types of AI-based systems are used for the production of evidence, including:
Hansken, a tool for the gathering of data out of huge data sets, and CATCH, a facial
recognition tool. Despite this increasing reliance of digital evidence, Dutch law (including the
draft Code of Criminal Procedure, which is the result of the ongoing Modernisation project) has
yet to implement any significant changes to rules relating to evidence. As such, the few rules that
regulate the gathering of evidence do not fit the particular needs of digital evidence very well. This
leads to several issues, including with the principle of equality of arms. Considering the way digital
evidence is gathered – in fact, produced – and examined, the defence needs additional or
broader rights in order to participate in determining what counts as relevant information in a
particular case, to participate in searching for exculpatory evidence, and to question the validity
and accuracy of the functioning of AI-based systems. Such rights are, however, slowly being developed
through case law.