#pokolenieNCN – Karolina Kremens: The digital age offers an opportunity to reshape criminal procedure

The next researcher in the series, Karolina Kremens, studies the impact of new technologies on the criminal process and asks what procedural rules would look like if groups historically overlooked had been involved in shaping them.

The NCN Generation is made up of researchers whose work pushes back the frontiers of knowledge and changes our lives – improving health, protecting the environment, advancing technology and deepening our understanding of the world.

Dr hab. Karolina Kremens, a professor at the University of Wrocław, heads the Scientific Excellence Incubator – Digital Justice at the university. Her research interests include comparative and international criminal procedure, the impact of new technologies on the criminal process, the role of gender in that process, and the organisation and operation of the public prosecution service. She has served as principal investigator on four NCN projects, and in June this year she was awarded an ERC Advanced Grant.

New technologies in the criminal process

New technologies have been changing the criminal process for a long time. DNA testing and fingerprint identification were once innovations too, the researcher points out. Today, however, their reach is expanding. Evidence is increasingly moving away from traditional forms: searches of handbags and homes are giving way to searches of phones and cloud storage, while geolocation data now appears in case files alongside witness statements. The range of people supplying evidence has also changed, as recordings and other records are now submitted by those involved in an incident and by witnesses themselves. This raises questions about who collected the material and whether it may have been manipulated. This is particularly evident in evidence submitted to the International Criminal Court, an area studied by the Centre headed by Kremens.

The change goes deeper, reaching the very foundations of procedure. “Technology is profoundly changing long-settled procedural principles, including the principle of immediacy and equality of arms” says Karolina Kremens.

Remote proceedings and digital evidence

The researcher identifies two areas in which digital transformation is having the greatest impact on the criminal process. The first is remote proceedings, which became widespread after the pandemic and have since been regulated in many countries. She does not view them in black-and-white terms. She sees benefits where distances are considerable and remote participation saves witnesses from having to arrange childcare, for example. But she also points to the costs: witnesses give evidence from locations over which the authority conducting the proceedings has no control, making it impossible to know whether someone is influencing them, while barriers relating to equipment and digital skills may be overlooked. “Yet, as relatively affluent and educated participants in the criminal process, we assume that everyone has access to a computer, a phone or the internet, and a stable connection,” says Karolina Kremens.

The second area is digital evidence, which is regarded as more reliable than witness testimony. Kremens asks whom we trust to confirm that evidence was created under particular circumstances, and who is even in a position to create it. To illustrate the point, she gives the example of a married couple in a domestic abuse case: only one spouse controls the family's cloud storage and therefore also controls the recordings made on the other spouse's phone. In such a case, access to the data, rather than its content, determines whose version of events is accepted.

Feminist proceduralism

These inequalities are the starting point for the project for which Kremens received the ERC grant. The project aims to reconstruct the criminal process and develop the concept of feminist proceduralism: a model of the procedural principles that might have emerged had marginalised groups also been invited to shape them. “Feminist proceduralism is what I will develop at the very end of this project,” says the researcher.

Her tool is feminist legal theory viewed through an intersectional lens, taking account of class, education, wealth, ethnicity and sexual orientation. The research will cover Poland and Canada, which offers perspectives unavailable in Poland, including those relating to the rights of First Nations, Inuit and Métis peoples. In Kremens's view, digital transformation itself offers an opportunity to reshape procedural principles, since it is changing them regardless.

She brought two objects into the studio. The first was an illustration by Łukasz Kubiński depicting the structure of the project. “The laboratory is the criminal process, the tool is feminist legal theory, and the opportunity is the digital age,” Karolina Kremens explains. The second was a Taylor Swift record. The project's theme song will be her track “mad woman”. “I think it captures very well what the project is about and how much energy I will have to put into persuading people that the seemingly mad idea at its heart is, in fact, viable,” says the researcher. 

Before ERC, there were NCN grants

Karolina Kremens has served as principal investigator on four NCN projects. She began with SONATA, followed by SONATA BIS and PRELUDIUM BIS, and is currently carrying out an OPUS project. These projects involved teams of varying sizes, including students and PhD students, and it was through them that she learnt how to manage research teams. The reviewers of her ERC proposal noted that she had never led a European grant, but nevertheless considered her national track record proof that she could manage a budget of EUR 2.5 million over five years. Kremens therefore regards NCN grants as a prerequisite for a successful ERC proposal and increasing NCN's budget as the most urgent priority.

Selected excerpts

Unequal access to creating digital evidence

In many different types of proceedings, we often think that witness statements may be flawed because someone may remember events differently or may even be lying. But we assign a somewhat different weight to DNA evidence and, more recently, to digital evidence. The question, then, is whether we all have equal access to the means of creating evidence. (...) One partner may have greater control over what the family stores in the cloud. This means that everything recorded on the other partner's mobile phone, everything documented in some way, may remain under the control of the person with sole access to the cloud or its security settings.

An intersectional approach to feminist legal theory

I would like to emphasise very strongly that this is feminist legal theory viewed through an intersectional lens. I do not want to repeat the mistake feminism made for many years: looking solely from a woman's perspective, and primarily that of a white, educated and affluent woman. An intersectional perspective allows us to see other dimensions of disadvantage. It means looking not only at white women, but also at women of different racial and ethnic backgrounds and from different social classes.

NCN grants as a prerequisite for ERC funding

All the reviews placed in the ERC system after I received the grant make it clear that my previous experience of leading a range of NCN grants is what assures the reviewers that I can deliver an ERC Advanced project worth EUR 2.5 million over five years. (...) I believe that a sine qua non for receiving an ERC grant is being able to demonstrate that you have secured external funding and successfully conducted research with it. In Poland, these external grants are awarded by NCN.