LEGAL CERTAINTY IN A REALITY OF INFINITE POSSIBILITIES: OBSOLESCENCE OF STANDARDS

"Alternative Realities"—now, I can imagine what you’re thinking: What does "spooky things happening at a quantum distance" have to do with the legal standard of proof? Well, that’s why we are both here: to explore the application of the "Balance of Probabilities" in a universe of infinite alternative possibilities.

In this post, we will delve into the standard of proofs, their practical application, and whether such standards needs to evolve given that our definition of "possible" is expanding. This has become a freestyle—an expression of thought. This isn't strictly for academic rigor, nor is it a deep philosophical dive into why these standards exist. Instead, it is an observation of how the ground is shifting beneath our feet.

OVERVIEW

I will focus primarily on the Beyound a Reasonable dount and won’t dwell too much on the Balance of Probabilities standard. Criminal litigation and the Advancement of tech provides the clearest insight into why our current standards of proof are nearing obsolescence.

You see the image described above? A rat, wearing shades, holding a firearm in perfect form next to an ancient computer system. After over 40 posts on this platform, this is the first time an image truly captures the theme. Our understanding of what is "possible" has stretched beyond our traditional grasp of reality, and it is essential that the legal ecosystem takes cognizance of that.

Our standards of proof are becoming problematic because they do not account for the fact that, in the digital age, anything is possible. The idea that one person can be in two places at once used to be a physical impossibility; now, it’s a digital service. This disturbs the fabric of the "alibi." When an accused claims they were in China while the crime happened in Durban, or a defendant claims they never signed a digital contract, these claims become plausible irrespective of the evidence.

In the 21st century, proving something "beyond a reasonable doubt" is becoming a Herculean task. Technology has advanced to the extent that video recordings—once the "smoking gun"—can be altered to show the face of the accused while they were actually sipping sake in Hong Kong. We have digital masks, real-time deepfakes, and hackers capable of altering CCTV feeds to fit any narrative.

BALANCE OF PROBABILITIES vs. BEYOND A REASONABLE DOUBT

Let’s get technical for a moment. In South Africa’s adversarial legal system, the burden of proof is divided:

• On a Balance of Probabilities: Used in civil matters between private individuals. This standard requires that one party's version of events is more probable than the other's.

  Example: There is a motor vehicle collision at the corner of Gotham and Metropolis. Batman and Phoenix crash into each other. Batman sues Phoenix for damages, claiming Phoenix was negligent for skipping a red light (a "robot"). Phoenix responds by claiming he didn’t skip the light—rather, Batman’s vehicle appeared out of nowhere as if it teleported.

  Looking at these two versions, all things being equal, Batman’s version is more probable than a teleporting Batmobile. Therefore, Batman wins on a balance of probabilities.

• Beyond a Reasonable Doubt: This is the gold standard in criminal law. The State must prove the accused’s guilt to such an extent that there is no "reasonable" doubt left in the mind of the court. The accused's version doesn't have to be true; it just has to be reasonably possibly true. If there is a sliver of a chance that the accused is innocent, they must go free.

  
  

THE INADEQUACIES OF PROOF IN THE ERA OF AI

The more technology advances, the wider the realm of possibility becomes. We now have tech that allows a person to be in "two places at once." AI video generation is both impressive and terrifying. One could legitimately commit a crime in person while simultaneously hosting a live-streamed event elsewhere using a digital twin.

We live in a social media era where alibis are verified by Instagram profiles or tweets. Because these posts have timestamps and real-time feeds, they carry immense weight.

Take this scenario: Bruce is charged with a murder in Gotham that happened between 2:00 PM and 3:00 PM. During that exact time, Bruce was on Instagram Live hosting a "twerk contest" (Tory Lanez style). The world saw his face, live, interacting with comments.

The catch? Bruce actually committed the murder. The "Live" was a sophisticated AI loop or a pre-recorded deepfake.

How does a prosecutor prove beyond a reasonable doubt that Bruce committed the crime when there is "live" video evidence of him elsewhere? I put forward that the Beyond a Reasonable Doubt standard is in danger of becoming N/A, or at the very least, requires a radical redefinition of what constitutes a "reasonable" doubt.

While the Balance of Probabilities is less impacted (as it only requires the most likely truth), it still faces a crisis. When "anything" can be faked, deciphering the "most probable" truth becomes a gamble. Unless a version of events is outlandishly untrue, the lines of probability become blurred.

CONCLUSION

The intellectuals and academics of the legal profession need to start preparing for a paradigm shift. We are approaching a point where technology blurs the line between "is" and "is not" so effectively that the human eye and the "reasonable" mind cannot tell the difference.

While I don't claim to have the solution, the problem is manifest. Our legal standards were built for a world of physical certainties. We now live in a world of digital infinite realities.

DISCLAIMER: THIS DOES NOT CONSTITUTE LEGAL ADVISE NOR ACT AS LEGAL AUTHORITY FOR THE SUBJECT DISCUSSED. THIS IS BASED ON AN IDEA, A CURIOSITY AND DOOM SCROLLING ON SAFLII. CONSULT YOUR ATTORNEY, PREFERABLY LOCAL ATTORNEY AND TAKE IT FROM THERE