By Mohammed Adoke, SAN
We are in an era that has recorded monumental strides in science and technology the impact of which resonates through all aspects of our daily lives and endeavours. Discernible effects of globalization and technological development are easily gleaned from the way we communicate and relate with others through the use of Mobile telephones, Fascimiles, and Emails.
It is now possible to live in Nigeria and carry out business transactions with persons in the United States, United Kingdom without having physical contact. Contractual obligations are created daily with the aid of technology obviating necessity of physical contracts. People in Nigeria may through the use of Video Conferencing engage in interactive meetings with persons at different parts of the world simultaneously.
The progress recorded in the fields of science and technologies are not without their pitfalls and problems. Aside from the positive effects of technology on contracts and the way we carry out business; technologies have also been deployed to unravel crimes such as murders, forgery etc. On the downside, they have also aided commission of crimes particularly across different jurisdictions such as kidnapping, scamming and particularly transnational crimes as money laundering and drug trafficking.
There are to varied degrees, the presence of technology in form of computers and digital devices in the commission of crimes as it is not unusual for drug deals to be set up via text messaging, for murderers to leave an internet footprint that demonstrates intent, engaging in financial fraud through emails and the sexual exploitation and abuse of children by predators using technology. It is thus imperative that the judicialÂ processÂ Â inÂ NigeriaÂ mustÂ noteÂ Â andÂ keepÂ paceÂ withÂ these technological advancements.
Scope of digital forensic advocacy
The purview of digital forensic advocacy is wider in scope than autopsies, medical laboratory work tangible and physical items found in or around a crime scene, to include physical computer or hard drive seized for analysis in cases of cyber crimes, child pornography and computer related crimes; analyzing ballot papers, voters registration to prove or disproof electoral fraud and irregularities in cases of electoral litigation. The lives of individuals in societies have become inextricably %M-linkedÂ with digital technology that it is thus obvious that digital technology will be increasingly used by all shades of societies.
The aim of forensic analysis is to provide information readily available to aid the court in its adjudicatory process. Advances in medicine, chemistry and microscopy prepared the way for the adoption of scientific analysis, rather than pure observation and intuition as the cornerstone of criminal investigation with the use of chromatography, spectroscopy, hair and fibre analysis, serology, pathology, ontology, toxicology in prosecuting crimes. Advances in technology are often deployed for both unauthorized and unlawful purposes as well as regular and lawful use.
In recent times, we have witnessed an alarming surge in the occurrence of unlawful uses of technologies like emails and mobile phones to perpetuate crimes which requires sufficient knowledge and expertise to identify and combat their occurrence. Due to the complexities involved in digital forensic advocacy, the use of experts cannot be overstated. As experts can and will aid the adjudication process particularly with respect to providing evidence and its admissibility. Sufficient conclusive research must stand behind techniques and methods to analyze and examine exhibits that could become evidence or proof.
It is trite that as judges, lawyers, witnesses and parties to suit be it civil or criminal we will be confronted with novel challenges presented by digital evidence particularly in light of complexities and rigours associated with its presentation and admissibility and understanding the digital forensic report. It will not be sufficient for lawyers acting for either party to call the expert to present scientific and technical evidence without as much as the court or either party calling for the analysis and evaluation of the evidence by rigorous standards. The newer aspects of digital forensics such as forensic analysis of computer systems also present a number of issues such as recognising potential digital evidence, the use of computers, cell phone in criminal activity creating communication forensics.
Nigeria needs to establish Computer Forensic Laboratories either on a state wide or zonal wide basis which are federally funded and managed by the Government, agency designed to work closely with the Military, Police, Para-Military, State Security Service and all state and local law enforcement agencies to seize, and forensically examine digital evidence and ultimately support their successful prosecutions in courts. TheÂ judicialÂ process in Nigeria involves different agencies collaborating at different stages from investigation to prosecution which poses serious challenges with regards to digital forensic advocacy.
Against the background of the aforesaid, it is necessary for the prosecution to be painstaking and diligent in the sourcing, gathering and presentation of evidence that would sustain a criminal charge and prove the guilt of the accused beyond reasonable doubt. This standard of proof placed on the prosecution in criminal trials as well as a plaintiff in civil litigations makes a recourse to forensic science all the more important.
There are no direct provisions in the Evidence Act permitting the use of forensic evidence, though specific provisions dealing with finger prints analysis, handwriting analysis, medical report, amongst others which when taking as a whole, may subject to when a full review of the Evidence Act is carried out, provide a legal framework for forensic, evidence in our legal system.
Nowadays a great percentage of all information is created in electronic form, ranging from word documents and spreadsheets to email and instant messaging. In the United States, corporate executives from Boeing to Credit Suisse First Boston have found their own inappropriate and often illegal activities exposed on the cover of the Wall Street Journal after scrutiny of their personal and business email accounts.
Lawyers need to understand how documents are created, maintained and destroyed as the trend in America requires Lawyers to understand the process of retaining documents on computers and the computer systems. The explosion of electronic information thus, requires that lawyers and judges possess technical expertise to manage electronic discovery.
As the plaintiff or defendant counsel is charged with the task of presenting reasoned arguments, the judge must also demonstrate both technical and legal ability to appreciate arguments proffered. Lawyers, Judges and Law Enforcement Practitioners will need to appreciate the differences and associated legal risks between paper and electronic information and evidence with respect to volume, complexity and location.
As Judges, counsel and law enforcement practitioner become well informed in digital technology and understand its complexities, more completely; we will see scientific reports subjected to standardized and detailed analysis. Undoubtedly, Digital Forensic Advocacy will affect the tenuous relationship often present between opposing counsel as either side seek to present, admit or contradict digital evidence.
The Legal Practitioner faces increasingly complex responsibilities far beyond those imposed by conventional duties of Solicitor and Advocate. It is now imperative that he must of necessity understand a clientâ€™s use of technology, data retention architecture, methods, policies and procedures for managing electronically stored information, and act quickly and intelligently to advise their client on complex legal and technical issues
The enlarged scope of the responsibilities of a legal practitioner with respect to digital forensic advocacy will include ethical traps, an examination of key decisions of â€œwhat not to doâ€, evidentiary concerns, and specialized data analytics. Similarly, the duties of an investigating officer have also become more tenuous and complex as he wades into the maze of digital crimes and digital evidence.
It is undoubtedly clear that we need to take specific steps towards developing digital forensic advocacy in our judicial process by getting all stakeholders in the justice system on board. Critical infrastructure like creation of forensic laboratories would need to be created to carry out analysis of forensic and scientific analysis. In the same vein, an immediate and speedy review of our Evidence Act is of utmost importance. A review of the Act should take into cognisance the rules for the admissibility of digital evidence and scientific report of experts.
Its value have been proved in election litigation in Nigeria and it has gradually changed the landscape of litigation. Finally it is my firm belief that as we begin to expand knowledge in this emerging area that has gradually changed and is changing the face of litigation and the justice system in Nigeria our judicial process will be better off.
Being address delivered at the international training conference on digital forensic advocacy held at the Nigerian Institute of Advanced Legal Studies, Lagos recently.