Friday, 9 December, 2022
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Admissibility of Digital Evidence: Opening of a Legal New Era

Fatema Hossen

Admissibility of Digital Evidence: Opening of a Legal New Era

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As the world has emerged into its new frontier of the digital world, laws are also needed to be tailored according to these modern changes. It is challenging to determine how reliable a computer system or process is. Basically, the practice of evidence collecting in current Bangladesh has been enshrined in the Evidence Act, 1872 which was enacted 150 years earlier. Here, evidence means statements that the Court permits or requires to be made before it by witnesses or oral evidence. Mainly, physical documents are produced for the inspection of the Court. Nonetheless, in the definition of evidence, the phrase did not specifically mention using any electronic or digital data or record as proof.  However, Bangladesh has finally opened a new window in its legal arena through the recent amendment of evidence law, the Evidence (Amendment) Act, 2022.

Till date, it is a penumbra of attaching digital evidence for the lawmen as well, since there was no rigid statement that implies the bar and acceptance of the digital evidence. Due to the lack of authenticity of digital documents, such documents are not supposed to prove their authenticity beyond reasonable doubt by the court. Moreover, courts frequently assume that forensic software can be relied upon to produce reliable digital evidence, often without the benefit of any substantial assurance. This assumption is incorrect as a judicial construct since it is not designed to distinguish between accurate and faulty results. As a result, it led to fallacies by the opportunists when the question came to producing digital documents in the past. To confront access to justice, the law needs to clearly demonstrate the provision to avoid the unnecessary defense of legal ambiguity. Building capacity now refers to preparing the criminal justice system to handle the challenges posed by electronic evidence and cybercrime. This demands enhancing capabilities and knowledge and raising the efficiency of criminal justice organizations through procedural regulations of accepting evidence. Therefore, it was demanded of time to adopt specific and clear provisions for electronic or digital evidence without any ambiguity in producing evidence. On that account, the amended law clearly encompasses the words “and includes any digital record” after “that matter” in section 3 of the Act, in the definition of “Document”. Such records are basically derived from the definition described in the Digital Security Act, 2018. Apart from this, the evidence provisions have acknowledged many other aspects of digital evidence as admissible evidence. Furthermore, any five year old data of digital evidence does also have the “may presumption” effect under this amendment, if it is produced from proper custody (section 90A with explanation of this Act). In terms of oral admission as to the contents of digital records, the oral admission can only be admissible, if any question appears regarding the authenticity of digital evidence.

The bar to the admissibility of digital evidence is a universal discord indeed. The court stated that digital evidence had a “prima facie aura of dependability” in Olympic Ins. Co. v. H. D. Harrison, Inc. Despite having its origins in the context of corporate records, the Presumption of Reliability should be coextensive with the law of digital evidence. Moreover, the appellate court in Missouri v. Dunn concurred with the trial court in saying that “such records were uniquely dependable in that they were computer-generated rather than the result of human” a human entry.

Although there was no clear written law on digital evidence in Bangladesh, the acceptance of digital data is exercised in practice.  If we look back at some of the cases which accepted the digital evidence as admissible, Mrs. Khaleda Akter VS State 37 DLR (1985) 275 is one such. Here, the court held that making a video cassette or tape with the intention of preserving a specific piece of information on magnetic cassettes and displaying it on television should fall under the definition of a document. According to the Appellate Court, audio and video tapes can be used as evidence as well. Again, regarding the inclusion of digital or electronic evidence, in the case of Major Bazlul Huda & Others Vs. The State [18 BLT (AD) (2010) 7], the court made a statement that if the accused disputed the statement or admission, the issue of whether it is admissible must be examined in light of the applicable rules of evidence. The admissibility of digital or electronic evidence is in dispute in The State vs. Yeasin Khan Palash 29 BLD (HCD) (2007) 469 where video or audio cassettes about the incident are clearly admissible in evidence based on a reading of Section 16 of the Druto Bichar Tribunal Ain, 2002. That means, whenever a situation comes up concerning the admissibility of digital evidence, it has to go through a dispute first about whether it is admissible or not.

However, after so many debates on the admissibility of digital evidence due to the lack of clear provisions, the Cabinet has approved the Evidence (Amendment) Act, 2022 which has clarified the ambiguity of accepting digital evidence. If any dissatisfied party files a petition contesting the decision of the lower court in case of admission of digital evidence or documents, he noted, various legal complications may arise under the current statute. In addition, tempering or manipulating such electronic evidence is punishable according to the concerned law, such as section 211 of the Penal Code or section 57 of the Digital Act, 2018. To uphold justice, defining such provisions is really a most pressing need of this era. Though many existing domestic laws allocate specific regulations regarding electronic evidence, all of them are redressed under special laws. Therefore, this 150 year old law required removing the obscurity of the law to broaden the access to justice by avoiding unnecessary delay due to legal challenges. Also, this amendment has brought another revolutionary change that has debarred the practice of questioning victim’s character in rape cases. Needless to say, this amendment has established a new milestone against social stigma along with opening a new door for access to justice.

 

The writer is a Research Intern at the Research Wing of A.S & Associates