In a complex legal case involving employment litigation, I was engaged as an expert witness to address a critical forensic challenge: substantiating the potential nonexistence of a digital document. The defendant, currently detained in a Middle Eastern jurisdiction, faced substantial financial claims from a previous employer and was now confronting fraud allegations.
The case hinged on a nuanced digital forensics challenge: proving the nonexistence of an unsigned digital contract. The prosecuting lawyers asserted that the document never existed, while the defense sought to demonstrate the opposite.
During preliminary legal meetings, the opposing counsel presented their purported evidence with remarkable confidence. Their approach was strategic—they controlled the narrative, extensively explaining their perspective while notably avoiding direct questioning of my professional expertise. The singular query they posed was tellingly administrative: confirmation of my professional indemnity insurance.
Recognizing the fundamental impossibility of definitively proving a digital file’s nonexistence, I directly challenged their legal strategy. My response was succinct yet unequivocal: demonstrating absolute digital document nonexistence was fundamentally naive and legally unsound.
The subsequent interactions revealed the case’s complexity. I prepared a closing statement, which I recommended be shared with the prosecution, ultimately proved decisive. Upon reviewing the document, the opposing legal team elected to discontinue their prosecution.
This experience underscored the intricate challenges of digital forensic evidence and the critical importance of rigorous, logical analysis in legal proceedings involving digital documentation.
Ladies and gentlemen,
Today, I ask you to consider not only what is presented in this case, but also what is left out—the gaps, the blind spots, and the complexities glossed over by the sweeping assertions made by the opposing counsel. The claim that a digital document never existed because it cannot be found through their forensic investigation sounds definitive. But in reality, it is anything but.
Let me take you through why this notion, if accepted, becomes an oversimplification—a convenient but dangerous fallacy that disregards how digital evidence works in practice.
First, digital absence is not evidence of non-existence. Imagine walking into a library after a fire and failing to find a book. Would you confidently declare that the book never existed simply because it no longer sits on the charred shelves? Digital data is often more fragile than we care to admit, subject to deletions, overwrites, hardware failures, malicious tampering, and the ravages of time itself. A file can vanish, without a trace, under myriad circumstances—many of them beyond human control.
Second, we must discuss the limits of digital forensics itself. Forensic tools can be powerful, yes, but they are not infallible. There are countless ways data can evade recovery: encrypted files, corrupted drives, fragmented data clusters, obsolete storage formats, or even simple user error. A computer system is not a perfect archive; it is a dynamic, ever-changing entity shaped by software updates, file transfers, routine purges, and countless other interactions. No forensic team can guarantee recovery of every piece of data ever written and lost. The claim that “nothing was found, so nothing existed” disregards this reality entirely.
Third, let us reflect on human behaviour—an aspect inseparable from digital evidence. Files do not simply disappear without interaction. When documents are lost, altered, deleted, or concealed, there is often intent, or at the very least, human influence involved. The absence of a document does not exonerate or affirm innocence. Instead, it demands scrutiny of how it was handled, what procedures were undertaken, and what motives might be at play. To ignore these complexities is to risk overlooking the very essence of truth.
Moreover, consider this: digital footprints are complex trails, not straightforward paths. They can be altered, obscured, or even erased intentionally. The absence of a document in a forensic search could indicate deletion, tampering, or migration, none of which proves the document’s original existence or non-existence. Without more context, such claims hold no weight. Absence is not evidence. It is a shadow that requires light and context, not blind belief.
Lastly, let us remember what’s truly at stake. If we accept the claim that a file’s absence is definitive proof of its non-existence, we empower those who seek to manipulate data. We give cover to the destroyers of evidence and those who seek to shape narratives by erasing digital history. It sets a dangerous precedent that undermines justice, because the absence of evidence can be engineered. Letting such a claim stand risks turning justice into an arena for those most adept at making evidence disappear.
Ladies and gentlemen, justice is not a game of finding what is absent and calling it non-existent. It is a process of uncovering truths amidst complexity, human behaviour, and technical limitations. To rule in favour of this claim would not only be a mockery of truth—it would be an open door to future manipulations, erasures, and injustices that exploit what cannot be found.
I ask you to reject this facile and dangerous notion. Truth cannot and must not be found in what is absent alone, for it is a hollow foundation upon which no justice can stand.
Thank you.
Verbal Alchemy 