Rethinking Evidence and recording depositions.

We are living in a world where Artificial intelligence is fastly developing. One key area which the judges are having trouble with is to distinguish between an honest witness and a dishonest witness. There are witnesses who can lie without a bait of an eye. Some witnesses imagine and recreate facts, events and things which never existed and present them as if that is the truth.  It is always difficult to find out the truth from the ordinary look at the face of these witnesses and also by normal cross examination especially when the witnesses are coached. 

Another big issue in relying on oral depositions is the twisting of depositions by intermediaries including police and counsels. Twisting can occur for a number of reasons including a genuine concern for the betterment of the party. But these concerns are a challenge to the judicial process in finding out the truth. One of the major challenges in the current Indian judicial system is the practice of taking down in writing the testimony of witnesses. The practice of taking down in writing the deposition of witnesses is the advent of modern criminal justice system. While this practice helped to capture the depositions of witnesses more accurately than relying on the memory of the officials involved in the criminal justice process, at an era when even photography was new technology, much water has flown since then. Taking down depositions in writing has the following disadvantages:

✓ Written words does not capture emotional aspects including tone and accent that accompany the spoken words.

✓ Writing of spoken words by another person will invariably involve the mental exercise of the person taking down the evidence, which may tend to twist the actual spoken words and give them an entirely different perspective.

✓The difference in dialects can mislead the reader.

✓ Taking down something in writing involve an exercise of discretion by the writer who may in the exercise of such discretion include things not intended by the speaker.

What is the way forward? Technology has developed many tools for accurately capturing even  the emotional aspects of the speaker. (See https://youtu.be/CVClHLwv-4I, https://youtu.be/lDC90ObdMEs ). If all agencies including crime detection and justice administration team uses these AI models to record the deposition of witnesses using video cameras with face recognition technology capable of capturing and analysing emotional aspects of the speaker, the error margin in criminal justice system can be reduced to a great extent. Further recording of oral testimony by crime detection agencies and using it in evidence instead of testing the memory of the witnesses by requiring them to accurately remember the sequence of events at a future date would help in removing trauma of the victims, especially of violent crimes, in recreating what they went through at the time of crime several times and giving chances for distortion. It will also help the criminal justice administration mechanism to accurately capture the oral testimony of witnesses including the tonal variations, dialectical features and the emotional aspects attached to the deposition enabling judges to accurately decide regarding the truth of the depositions.

Imagine a scenario where the victims and witnesses's depositions are recorded by the police under s.161 CrPC using a face detection camera which captures emotional aspects while the victims/witnesses speak. The police can use this to analyse the accuracy of the deposition to arrive at a conclusion regarding the occurrence. Immediately on recording this video will get uploaded into the criminal justice server kept centrally under the management of judiciary to avoid tampering. This recording with all metadata can be shared to the various stakeholders including medical professionals who conduct medical examination of the witnesses. The doctors while making physical examination of the victims can assess this recording and use it to compare with the results of their examination to arrive at an opinion. The original recording of depositions can also be done at the hospital while the doctors conduct medical examination in a similar way using a software which uploads the recording to the judicial server which can then be used by police also. The doctors can upload their report online, which can be accessed by the police and other investigation agencies. The scene of occurance can be captured using a  Geo Information enabled camera (see:https://youtu.be/CK9m0Sn37v0,  https://youtu.be/mIaG6EDBtao). Once the process of investigation is complete, the entire video files with metadata can be shared with the court along with report under s.173(8) Cr.P.C. A copy of this file can be shared with the accused digitally with or without copying facility. If any files contain sensitive material that may affect privacy of individuals, the investigation agency can indicate the same and the said file will not be shared. Upon completion of formality when the case comes up for trial, the witnesses can be cross examined based on their video recorded testimony, including the data of analysis of emotional aspects. These depositions can also be recorded using facial recognition camera so that there can be a real time analysis of the emotional aspects revealed on such recording. The original depositions recorded by the police can be used for chief examination instead of repeating the deposition. A witness need to be called for cross examination only if the defence counsel seeks to clarify something from that witness by a written application. If a witness is not called for cross examination, the deposition recorded by police should be accepted in evidence and the same should be used for any evidencial purpose. If a witness is called but the witness fails to appear either in person or through video conferencing after proper service of summons, the deposition has to be discarded in toto. This will save a lot of time in judicial process and will enhance the quality and efficiency of criminal justice system.