Emotional biometrics: a preliminary analysys of critical aspects of the last AI frontier in criminal procedure

This work deals with the critical implications of the possible implementation of emotional biometric techniques based on artificial intelligence in criminal proceedings, with a particular focus on their use for assessing the reliability of declarations given by witnesses and defendants. The introduction of such technology in criminal trials would raise problematic issues for multiple aspects of the criminal procedure, many of them unprecedented compared to those related to other already known similar instruments. In the past, lawyers and scholars have already confronted with techniques such as polygraph or Functional Magnetic Resonance Imaging (fMRI), highlighting the problems related to their use in a criminal trial. However, emotional biometric techniques based on artificial intelligence exacerbate these problems and pose new ones. The aim of this work is to develop a preliminary analysis of issues and perspectives of the use of such kind of software under three viewpoints: the possible impact on the declarant’s moral freedom; the incidence on the effectiveness of the adversarial principle; the impingement on the legitimacy of the judge.