By Mohammed Adoke, SAN
TheÂ judicial 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.