WHETHER AI MINI-PLAYERS COULD BE CONSIDERED VALID EVIDENCE IN THE EYES OF LAW?

Saloni Jaiman & Anshuman Mishra

Introduction

The introduction of artificially intelligent tools or equipment has made lives of people easier and convenient; any kind of information is a click or a voice message away. A newly formed gadget is the “mini-players” or the AI Home Automation Systems, which tend to follow the commands through a sequenced processing of vocal orders given, and also record them. This raises issues pertaining to the admissibility of theses type of devices when any kind of crime or offence which has been committed in its vicinity has been recorded on it. This piece discusses the legal implications regarding the admissibility of such devices as an evidence before the court of law.

Criteria of a Valid Evidence

Recently, with an increasing involvement of Artificial Intelligence tools in day-to-day lives, the issue pertaining to their admissibility has become a major question. It is thus imperative to examine whether, an electronic evidence such as Amazon Alexa mini-players could be a valid evidence or not and what are the other issues pertaining to it. Any primary electronic evidence which was present at the time of the commission of the offence, should be considered as a valid evidence or not is dependent on several points, for instance the evidence should be recognised as a computer output, a certificate might be required to be produced during the court proceedings wherein the evidence is to be reproduced etc. [1] Firstly, such evidence should be assistive to settle the primary issue at trial and the competency of testimony which depends largely upon its capacity to resolve the issue at trial. If the evidence is relevant, it must be admitted.[2],[3]”Relevant” refers to any two facts to which it is applied are so related to each other that proves or renders probable past, present or future existence, or non-existence of the other during the common course of events either taken by itself or in conjunction with other facts. Further, asper Bentham, relation between factum probandum and factum probans is called relevancy. Consider a situation, wherein a person “A” has been murdered and there was a mini-player which recorded its death. Here, cause of the death of “A” (factum probandum) and the evidence i.e. the mini-player (factum probans) to substantiate the proceedings becomes relevant and pertinent to admit the mini-player as a valid evidence. Further, it may be noteworthy that such mini-player might contain the dying declaration of A. In such circumstances, the court must lawfully admit it for the purpose of further investigation under § 32(1) of the Evidence Act.[4] “The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person's death comes into question.”[5]

Admissibility of an Illegally Obtained Electronic Evidence

Consider a second situation, wherein a person “A” has been murdered and there was a mini-player which recorded its death and this mini-player was stolen by a person called “Z” after the commission of offence. The admissibility of evidence procured in consequence of illegal and other unlawful acts was applied in R. v. Maqsud Ali “that the method of the informer and of the eavesdropper is commonly used in the detection of crime. [6],[7] The only difference here was that a mechanical device was the eavesdropper”. As per the present example, mini-player apparently acted as an electronic eavesdropper, must therefore be made admissible for the furtherance of investigation.[8]

As per the second example, the last conversation in the room, prior to death of A could have been recorder by the mini-player. [9][10]In an English case, Swift, J. is reported to have raised the question whether a Dictaphone record has ever been accepted in evidence by the Courts and upon counsel replying that he did not think so said that he saw no reason why such a record as the one which the witness said he had made should not be put in evidence. As per Indian Laws, there exists no constitutional bar in accepting such an evidence.[11]In R. v. Leatham “it matters not how you get it if you steal it even, it would be admissible in evidence.” [12]There is no constitutional bar in admitting illegal evidence for the purpose of trial. The illegality of the evidence cannot be a ground to set aside the verification of the evidence. [13] In the case of Rup Chand v. Mahabir Pershad, the court stated “I am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements, from deposing that while he was engaged in conversation with the witness a tape-recorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statement was made in his presence.” [14] In the case of State of Maharashtra v. Natwarlal Damodardas, it was held that assuming that the search was illegal, it did not affect the validity of the seizure and its admissibility as an evidence.[15]“Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified.” [16]This implies that excluding the mini-player which is a relevant and valid evidence, shall be unjustified to the issue pertaining to the death of A.

Mini Players and Issue Pertaining to Breach of Privacy

Yet another important issue which arises to be dealt with, is whether admissibility of such an evidence will lead to breach of privacy. In the Puttuswamy judgement, it has been laid down that that right to privacy is not absolute in nature.“In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21”[17] Getting back to the example, the invasion of such privacy in order to procure the recordings after A’s death is well-within the ambit of the due process of law so as to facilitate the criminal proceedings and therefore, it does not infringe article 21 of the constitution.

Trial is the examination and decision of a matter of law or fact by a court of law.[18] In Deepti Kapur v. Kunal Jhulka, the court, on admissibility of a phone conversation observed that “Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial”.[19] Right to speedy trial flowing from Art.21 encompasses all the stages, namely, the stage of investigation, inquiry and trial, appeal, revision and retrial. “The concept of fair trial has not been static but has been a dynamic one, which has been evolving and has grown over the years. A fair trial in modern parlance must be a trial based on an equally fair investigation on the basis of material which is before-hand disclosed to the accused.”[20] Further, in the case of Ritesh Sinha v/s state of Uttar Pradesh and others, the SC in a three -judge bench observed that “The fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.”[21]The same principle was followed in the case of Pooran Mal v. The Director of Inspection (Investigation), wherein evidences weren’t rendered inadmissible merely because search was illegally conducted. [22]N. Sri Rama Reddi & Ors. vs. V. V. Giri[23] in which a 5-Judge Constitution Bench of the Supreme Court has upheld the decision in S. Pratap Singh vs. State of Punjab[24]that a tape-recorded conversation is admissible. It was further held that a tape recording can be used to corroborate as well as contradict evidence.

Conclusion

It can be safely stated that Indian judicial system has laid down several rules u/s 65 B of the Evidence Act for admissibility of electronic computer-based evidences, but admissibility of AI devices requires a modified approach, since these devices are sensitive to vocal commands and therefore susceptible to manipulations by humans. Therefore, there needs to be an appropriate mechanism to ensure that only the first-hand copies of the recordings procured from such devices are made admissible. Another important aspect is with regard to admissibility of such evidences is the leakage of information, without a strong mechanism to scrutinise the evidences, any piece of information which might of sensitive nature would also be brought into the domain of court proceedings and the parties involved in it. Hence, it can be stated that such evidences should be utilised to ensure justice in a careful manner.

[The authors are second year students at the National Law Institute University, Bhopal]

[1] The Indian Evidence Act, 1872 § 6; Information and Technology Act, 2000 § 2; The Indian Evidence Act, 1872 § 65B (1) [2] C.P. Walker, Police Surveillance By Technical Devices 190-911 (Public Law 1S4 980).; Hogan V. The Queen 2 SCR 547 (1975); The Queen V. Wray SCR 2 (1971). [3] Stephen, Digest Of Law Of Evidence (4TH Ed. American 1886); The Indian Evidence Act 1872§ 32; Jeremy Bentham, The Works Of Jeremy Bentham (Vol. 6, Rationale Of Evidence, Rationale Of Judicial Evidence, 1843; The Indian Evidence Act. 1872 § 136 [4] The Indian Evidence Act 1872 § 32.; Uka Ram V. State of Rajasthan5 SCC 254 (2001).; Khushal Rao V. State of Bombay SCR 552 (1958).¶¶19 p. 39 [5] Tapinder Singh V. State of Punjab 2 SCR 113 (1970). ¶¶32 p.65 [6] R.M. Malkani V. State of Maharashtra AIR 157 (SC, 1973); The Indian Evidence Act 1872 § 136 ¶¶24 p.30 [7] R. V. Maqsud Ali 2 All E.R. 464 (1965) ¶¶ 16 p. 63; id., RM Malkhani case; James A. Ballentine Ballentine’s Law Dictionary (3rd Ed. 1969) [8] Information and Technology Act 2000 § 4.; Henry Campbell Black, Black’s Law Dictionary (2nd Ed. 1910). Hotcbklss V. Newton 10 Ga. 567. [9] Evidence Of Tape Recordings I.A Wilson and K.N. Garner “Evidence of Tape recordings” QUT Law review ¶¶74 p.101. [10] Buxton V. Cumminq 71 S.J. l 232 ¶¶45 p. 67 [11] R. V. Leatham 8 Cox CC 498 (1961); relied upon in R.M. Malkani V. State of Maharashtra, 1 SCC 471 (1973). [12] Pooran Mal V. Director of Inspection 93 ITR 505 (1974).; Verghese V. Commissioner of Agricultural Income-Tax 105 ITR 732; The Indian Evidence Act 1872 § 136. [13] AIR 593 (SC, 1983); Radhkishan V. State of U.P 1 SCR 408 (1963); Shyam Lal Sharma V. State of M.P. 1 SCC 764 (1972); Bai Radha V. State of Gujrat 9 GLR 278 (1968). [14] Rup Chand V. Mahabir Pershad SCC OnLine 82 (P&H, 1956) ¶¶ 12 p. 36; Andrews V. United States 105 ALR 322.; Boyne City, G. and A.R. Company V. Anderson 117 A.L.R 642. [15] R.M. Malkani V. State of Maharashtra AIR 157 (SC, 1973) ¶¶560 p. 111 [16] State of Kerala V. Alasserry Mohammed 2 SCC 386, 395 (1978)¶¶ 19 p. 43; W.T. Stone, Warden, 74-1055 V. Lloyd Charles Powell; Charles L. Wolff, Jr., Warden, 74-1222 V. David L. Rice (USSC Bulletin, Vol. 2, B4840, 1976); Satvik Verma, Every evidence is good, The Economic Times (14th March 2019). [17] Justice K.S. Puttaswamy V. Union Of India 10 SCC 1 (2017). ¶¶47 p. 95 [18] John Broke, Osbori's Concise Dictionary (6th Ed.); V. A Srinivas, General Principles Of Fair Trial ; Earl Jowitt, Dictionary Of English Law (2nd Ed. 1977) [19] Deepti Kapur V. Kunal Jhulka SCC On Line 672 (Del, 2020) ¶¶ 38 p. 76 [20] Seesa Hemchandra Sashissal V. State Of Maharashtra AIR 1246 (SC, 2001) ¶¶35 p. 54; Dagdu V. State Of Maharashtra CrLJ 1206 (1977).; Henry Campbell Black, Black’s Law Dictionary (2nd Ed. 1910).; Indian Const. art. 21.; A.R. Antulay V. Avdesh Kumar AIR 1701 (SC, 1992)¶¶ 35 p. 64 [21] Ritesh Sinha v/s state of Uttar Pradesh 2 SCC 357 (2013); R. V. Sussex Justices exp. McCarthy 1 KB 256 (1924) ¶¶26 at p. 259. [22] Pooran Mal V. The Director of Inspection (Investigation), New Delhi 1 SCC 345 (1974). [23] N. Sri Rama Reddi V. V.V. Giri 1 SCR 399 (1971); Dr. K.L. Bhatia, Fair Trial In Criminal Proceedings In India. Human Rights Library, Http://Hrlibrary.Umn.Edu/Fairtrial/Wrft-Kb.Htm. [24] S. Pratap Singh V. State of Punjab 4 SCR 733 (1964); K. L. Bhatia, Gurdeep Singh and Jagmohan Singh, "Delay: A Riddle Wrapped in a Mystery Inside An Enigma.," Journal of Indian Law Institute (42-72, 1995).