ARTIFICIAL INTELLIGENCE- A FRIEND OR A FOE TO THE PROSECUTOR: SHALIBHADARA DAGA

Artificial Intelligence: A friend or a foe to the prosecutor?

Author: Shalibhadra Daga

Maharashtra National Law University Mumbai

ISSN: 2581-8465

ABSTRACT

With the exponential speed at which the use of technology is rising in the country as well as around the globe, it becomes imperative that the law considers such changes. One such phenomenon that has risen like no other over the past decade is Artificial Intelligence (AI). Essentially why this should be deliberated upon in the field of evidence is because over the years there has been a change of trends in the way crimes are committed and then proved in the Courts of law by the investigators through the prosecutors.

In principle, criminals or persons-on-trial are humans and have certain defining characteristics that separate each from the rest. Here, AI steps in and makes that distinction. How it makes this is through the collection and storage of several (almost 5000) data points about each and every individual and their behavior in every aspect of life on a large database. Then this database can be operated by an individual and the data can be filtered and analyzed at super-fast speeds with the help of pre-designed algorithms. Now how will such a thing help with the delivery of justice (specifically the ascertainment of an accused’s behavior in order to deduce whether he/she could have committed such a crime)? Here Section 8 of the Indian Evidence Act would provide to prove the motive or conduct of that person and therefore the relevancy shall then be analyzed. Another point of view would be whether such kind of surveillance is a threat to the people of the society and what exactly is monitored and how can it then ascertain the behavior and conduct of a certain individual. The researcher, in this paper, shall argue mainly about how with the rising delays in the delivery of justice, AI can help the state (the prosecutor) deliver justice in the most efficient and effective manner while keeping in check the due procedure.

INTRODUCTION

The biggest complaint with regards to the justice system of India in today’s time is that maybe yes it does deliver justice but does it actually? Because justice delayed is justice denied and time is something which is valuable for every person in today’s era. The justice even if delivered in the best manner, shall not hold any value if it is not delivered in time. The average pendency clearance time in a Higher Court has been anywhere near 1.5 and 2 years.[1] The same way in the criminal justice system, the problem that is often coupled with pendency is that of conviction. Here, Blackstone’s ratio that says that a 100 guilty should be let go but not one innocent should suffer.[2] Therefore in the criminal system, an accused shall be proven guilty beyond any reasonable doubt. The burden of proof, here, lies completely on the state since the state is the one to prosecute the accused. On behalf of the state, comes the prosecutor, who has to handle not just a handful but a large number of cases in a day. Thus, increasing pendency and not being able to convict those who have committed a crime prima facie. The conviction rates between 2000 and 2015 have been at an average of 41.75%.[3] To increase this statistic, artificial intelligence could help by way of collecting evidence that would otherwise be very difficult to obtain.

This research paper shall introduce Artificial Intelligence, and how it could be used in not one but many situations and highlight the ways in which it could help the prosecution in the Courts of law. The Indian Evidence Act,[4] legislation that came into force in the year 1872 could not have anticipated such a change and therefore fitting such a system would have to be deliberated upon. This would require some ways to get the most optimum usage out of and shall be explained further in the paper.

There is a stigma around us in today’s India that technology is only harming the way Indians have lived all these years and cannot and will not bring any benefits to the people of India. How technology has stolen jobs, spoiled childhoods of the upcoming generation and made India less self-sufficient than it used to be before the reign of the West started over the world and that domination forced countries to bow to western technology. Artificial Intelligence, in that sense, is a fairly new and recent development that has come about in technology around the world. And the voluptuous speed that it has taken up to become a part of every day to day activity is both scary as well as hopeful in many aspects.[5] It increases the ease and convenience with which things that are done on a daily basis can be done with the least of efforts. Whereas, on the other hand, it can also malfunction and fuel the idea that there could be a takeover where people would then be helpless.[6] This kind of a dilemma has always hindered substantial progress of Artificial Intelligence in India at least for the past decade and now with the world turning to it off late, India has to take steps as well. Although the world is progressing towards the rise in usage of Artificial Intelligence, the recent controversies involving Cambridge Analytica and how the company paved way and distorted the Brexit referendum[7] as well as the United States Elections just by the use of the same Artificial Intelligence which people use in their houses to do daily chores. The chapters that follow shall highlight the controversies that have arisen and how it could productively come into play if such a form of technology is used to deliver justice, one of the main prerogatives of the state. The chapters that follow shall cover how artificial intelligence came into existence, how it can be used to gather evidence against an accused, what could be the problems that such a system would face and how would it ultimately pan out.

ARTIFICIAL INTELLIGENCE

History

Artificial Intelligence (AI) is a phenomenon that has branched out from the broader field of Computer Science and has taken up a completely different understanding which involves computers, different kinds of machines and mainly software and algorithms which are typically codes designed to perform a certain function. The phenomenon came up as the development of expert systems was required with the progress of industry and with it, the progress of technology. The western countries were at the forefront of the industrial revolution and have always had a foot in the game when it comes to the matters of advancements in the industry, with technology being a big game-changer. Artificial Intelligence was one such big leap in the advancement of technology and was spearheaded again by the west where they wanted convenience to be one of the prime features of the technology. Expert systems were made for specific tasks and accordingly the software and algorithms were designed for the machines and computers to work in the manner desired.

Then, in the year 1981 came the expert system named SID (Synthesis of Integral Design) which outperformed many of the human experts about subjects that would otherwise require human expertise.[8] This paved the way for the concept of AI that now exists and kept on improving with years to come. Players like IBM, Microsoft, Apple, etc. emerging in the consumer electronics space gave a big boost to research and the kind of expenditure that went along with it.

The way in which it functions

The current understanding of Artificial Intelligence, as we know it in layman terms, is a software that tries to take inputs from every possible place in every possible manner and crunches that amount of big data through preset algorithms in the software which in turn give out specific and niche results for the output to be then be considered as 100% true and efficient. Now let us take that step-by-step where first comes the software. This software could be anything and everything – right from the laptops, phones, speakers, etc. that we use in everyday life to the traffic cameras, databases of information kept with different kinds of institutions at a larger scale. All of this data is gathered in binary terms a.k.a. computer language and then fed through an algorithm. This algorithm is basically a long list of commands and functions that is written by an expert in the functioning of computers and one who understands the language of computers. It is written in the form of a code that a computer needs to run and perform in the same order that the commands and functions are originally set in by the expert who made the algorithm at the very beginning.[9] These codes usually take months and months of work by the experts and are extremely complex for the common human to comprehend without an in-depth understanding of the computers. These codes (algorithms) that are written up do not usually work in a straight-jacket form or linearly. They have different answers and ways forward for different kinds of outcomes. This is what makes an algorithm unique and sets it apart where it can change the direction that the finding is going in based upon the previous result/outcome in the step before. It is designed to go in loops, take up a top-down approach or vice-versa, start over for a different result and many more ways in which chunks of data can be processed.[10] The interesting part about this is that where humans would take at least days or weeks to process data in a similar manner, AI does it in a matter of seconds and minutes. This is what sets it apart and becomes rather more favorable for humans to use and save up on time since time is of the utmost essence in today’s world.

WHY IT SHOULD BE USED IN THE CRIMINAL JUSTICE SYSTEM

The way AI can be brought into the criminal system is multi-faceted and a few prospects are discussed here on. The first essential way it can bring in is for the purpose of fact-finding and character establishment for the prosecution. This is suggested for the reason that a single prosecutor has an enormous amount of cases to handle and usually, a case has only a single investigation officer assigned to it.[11] This investigation officer is not only the investigation officer for that case but has his daily duties to cope up with as well, therefore giving him very limited time in a day to actually carry out the investigation of the case that he is assigned to. This usually proves to be a big failure on the part of the police machinery and leads to a grave problem that already exists in the Indian judicial system. It is that of delays and grave ones. Now why this is harmful especially in the criminal justice system is because the accused – whether innocent or guilty, has to wait for at least a time period of an average of 2 years before he can be given either of the two verdicts.

Now comes the usage of artificial intelligence and the algorithms in this scenario to try to tackle the issue of delays and delivering effective justice. What could be done by the people higher up in the governance mechanism and involved in the criminal justice system is that a code (algorithm) could be made wherein each citizen in the country would be given a different unique identification, just like how the AADHAAR Card gives us a UIN (Unique Identification No.)[12] and a barcode which no one else has in the whole country and an individual can be separated from the rest. Once this is done, most aspects of a person’s life can then be linked up to this UIN which would operate on a completely different secure server from the rest. A person’s social and everyday life usually happens majorly through the Internet. Be it a driving license and car registration, operating a bank account, interacting with people, conducting business, etc. all these activities take place over the Internet. This algorithm would then have the capacity to filter out the rest of the data in order to ascertain specifically what one person’s activities are and have been over different time periods. This is just one part of the proposal here.

Then comes the part of an algorithm like the one that Cambridge Analytica had. To give a background, this was a company that was associated with major social media players like Facebook and pitched itself as a data-gathering company. What the company essentially did was that it gathered almost 5000 data points on every Facebook user that is stored.[13] These data points, as they called it, were behavioral symptoms classified into tiny bits and used it to metrically measure what kind of a standing an individual had. They had such data points about millions of users and now this was used to bring in advertising companies and fuel campaigns in Great Britain (Brexit) and USA (Trump campaign). Now it used the data that it had gathered and categorized it in such a manner that there was complete clarity of the behavior of each and every individual user and how they view something on social media and what their views on each contemporary topic are, therefore establishing a kind of a character sketch about an individual without knowing what the name of the person is or their actual physical characteristics. It was a complete ascertainment and check of the mental characteristics of a person and then that data was used for purely commercial purposes and to distort the principles of democracy as such by influencing people by totally undemocratic means.[14]

HOW IT COULD BE USED BY THE PROSECUTION

This would happen by taking bits and pieces from every occurrence of using AI and assimilating it all together for it to be used in the delivery of justice. The first few steps would remain the same in the process for setting up and establishing the system to get it running. A unique identification would have to be provided to each citizen of the country. Even perhaps to every person who enters the country for a limited period of time since any crime committed on Indian soil would be tried by the Indian justice system. So that would have to be done and then these unique identification numbers would have to be linked through the people themselves to various sources of day-to-day activities where every aspect of a person’s life could be looked at i.e. car registration, driving license, bank accounts and credit cards, company databases, social media accounts, etc.[15] Once all of the above is done, the system would have to be made extremely secure and then test runs would have to happen in order to see whether there is no real jumbling of data or corruption of data.

Illustrations

A hypothetical situation where such a system could be used says the issue in fact is whether A was in the vicinity when the murder of B happened. Now if the murder of B had happened in a very isolated location where there were the least of chances of the prosecution or investigating officer to find an eyewitness who could testify with regards to that issue, in fact, they would be helpless and A could get away with a fake alibi since it would not be checked out with complete certainty. If such a system existed, the unique identification number could be used to put it through the software that would run such an algorithm and this algorithm would be able to track movements of A by checking his phone’s location at the time of the murder, by checking where A’s car was heading before and after the murder and whether it was in the directions leading to where the crime took place. All of this would help the prosecution in triangulating the location of A at the time of B’s murder and provide proof in a matter of seconds.

Let us take another hypothetical situation to understand the application of such software. X is accused of attempting and abetting to wage war against the government of India under Section 121 of the IPC.[16] Now since the conversations between X and other people who conspired in doing the same did not happen in front of anyone else, it would be almost impossible for the Investigation Officer or the Prosecutor to investigate and ascertain whether X actually did attempt or abet. If this software existed, it would be able to look at the social media history of X and even those which were said earlier to establish the kind of conduct, character, and behavior of X to tell the Court that X could have committed such an act or attempt. Since waging a war is not an impulsive decision and would take a serious ideological difference, which could have been voiced on social media by X, and would take an immense amount of planning, about which X would have browsed on the internet or contacted other people or made plans through layouts of certain places, etc. This could all be tracked in a moment by the algorithm since everything would be linked to the unique identification number that the software would process. And if such a crime is committed where it could produce very serious consequences for the state and it cannot be that easily proved, then the state would suffer gravely if X is acquitted for the lack of evidence to prove the crime.

THE LEGALITY OF SUCH A SOFTWARE UNDER INDIAN EVIDENCE ACT

Would data collected and made evidence even be admitted or relevant in the courts of law is a very pertinent question? This question is answered in the negative would make the whole system waste and a farce since it would not be able to achieve its purpose of delivering efficient and accurate justice to the people in time. When looking at the provisions of the Indian Evidence Act, there are a few provisions that would vaguely encompass such a system to find evidence and these are discussed below.

With regards to relevancy, section 8 of the Indian Evidence Act[17] would allow something like this since any fact which shows motive or preparation for any fact in issue is a relevant fact. Like described in the illustration pertaining to person X attempting to wage war against the state, the motive or preparation can be ascertained through the person’s activity on social media accounts and investigating and ascertaining this through the regular investigation would be very time consuming and the results it would bore would be subject to the expertise of the person who goes through the data. This would give a rather standardized and objective answer where instances with regards to motive and preparation would be highlighted by the software and that could simply be put forth in the court of law to establish the same. Another section would be section 14 of the Indian Evidence Act where the state of mind, state of the body or bodily feeling would be relevant if they are relevant to a fact in issue.[18] So therefore if in the example of X, an output comes up through the software that a tweet was made on the associated social media platform where there was major outrage seen and the state and its government were cussed heavily in anger by X but this tweet was later deleted by X 2 days before the questionable action was alleged to be committed, it might be of use to the prosecutor to prove a point here to the Court.

On the other hand, come Sections 53[19]& 54[20] of the same Act which talk about the character of the accused and how that is relevant for the judge to ascertain whether mens rea or motive could have existed for the accused to have committed the crime and since motive is an essential ingredient of any crime, it would contribute substantially into the judge’s decision. It could be used against the prosecution where the good character could be relevant and the judge would then not be able to establish a motive to commit a crime in the accused’s head. Whereas, under Section 54 bad previous character would come into the picture and this would only be relevant if it is proved as a reply to the defence of good character. This software would help the prosecutor in doing so since the chances of acquittal would then reduce as the defense of character could then be negated through instances which the software would find through its algorithm and produce for the prosecutor to present.

It is given in the Indian Evidence Act that character is not relevant per se. Although Sections 53 & 54 show how the character could be relevant in criminal cases, it is important to consider that character and conduct cannot be left out of the ambit of proving a crime. The character of a person can be quintessential to prove whether or not he could have committed fraud and if the situations surrounding him were such that he would have to. All of this would then become relevant as background to prove whether or not a crime could have been committed by such a person under Sections 11 and 14 of the Indian Evidence Act. This system would then be put to use to ascertain things such as alibi of the accused at the time and place of crime, the state of mind through which the person was going in a period of time, etc. This would not completely 100% prove a crime but it would help the prosecutor convince the judge as to whether or not that kind of a crime could have been committed by that particular individual. If not the sections stated above, the facts that are discovered through this system would be relevant since it would prove motive, preparation or subsequent conduct. For example, if a person is driving a car and has accelerated the car exponentially in a particular stretch of a busy road and in that stretch of the road, a person dies due to head injuries sustained after being hit by a car. The car is then found abandoned on the side of a deserted road. Then this system could show through GPRS, the complete track record of the car. The movement, position, and speed of the car would be relevant by all means because it would constitute preparation and subsequent conduct under section 8 of the Indian Evidence Act.[21] Therefore, establishing in the judge’s mind, the kind of person the accused was at the time of the crime being committed.

CRITIQUE OF THE AI SYSTEM

When such a system is put into place by the state, it might attract a lot of opposition from the people. It would make the state a surveillance state due to its functioning and requirements. The feature at the center of this system is data and not every individual would be comfortable giving their data to the state for the state’s perusal. Here concerns for data privacy and protection would stem up among the masses. Consequently, it would become a great cause of concern for the state to deal with the questions of the people with regard to the use of their data.

Data privacy and protection has been a massive cause of concern for the state and its people in recent times. This is because of the hacks that take place into the databases where this data is cumulated and stored.[22] Why and how these hacks happen to depend completely upon the expertise of the hackers. It has come into notice that the channel that is used is a weaker database that is usually connected to the central mainframe database and once the weaker database is hacked, it becomes easy to channel into the main one.[23] More so, people fear that there might be data thefts that could happen through modes of phishing and pharming and their identity could then be impersonated easily. A central solution to this would be the independence of the judiciary. The judiciary, even though is an organ of the state, is independent of every other stimulus present. Therefore, such a database would only be under the control of the judiciary and cannot be accessed without a warrant-like document from the magistrate or any senior judge. The authentication of the document can be checked by the AI system itself and the UIN through the database to give the appropriate results.

The concern where the state would become a surveillance state can also be addressed by the same solution. A surveillance state is one that does continuous monitoring of individuals who are part of the state and this continuous monitoring essentially breaches the right to privacy of an individual. Through the solution stated above, only when a person is made an accused in a certain crime and crucial evidence to indict him cannot be found, will this system actually come into the scenario. When eyewitnesses, crucial documents, etc. cannot be found, the prosecutor shall approach the Court for a warrant-like document and then approach the database. This database shall be kept independent in the sense that all other databases would be linked to it but only for the main database to take in information and not give out information. So, through the one-way system, problems of hacking can be then addressed and through the authorization document, unnecessary monitoring can be taken care of.

CONCLUSION

We, as humans, have always feared the use of technology and where it could take us in the future. Also, us being the most superior race on the planet is a position that the human race as a whole does not want to lose. Now that we’ve looked at the mechanical aspect of it and how it is going to work in a given situation and what kind of outputs it is going to give through what means, what also needs to be looked at is the way it could reform the position of a country/state as to how it views its citizens or humans in general.[24]

Essentially, the biggest critique of such a system would be that the state would then start viewing its people as commodities or mechanical beings and not beings with a multi-faceted life where emotions and feelings play a big part in every decision that they take- voluntarily or involuntarily. This is said because the individual would then just be an identification number and nothing more. It would just look at all the bad aspects and look to cure those for the betterment of the society but not look at the rewarding side of what people do. Another problem with such a system would basically be that this system would make the state the “big brother” which would always be watching an individual. It would become, in theory, a surveillance state and all liberties, even the absolute ones, would then be at the behest of the state whether to limit them or not.[25] This would, at the first glimpse, not be acceptable by a large majority of the population and there could be severe backlashes but the result would be seen through effective and efficient justice in the near future. With the growth of technology, a system like this can only stand to benefit more than harm the society and state.


[1] Law Commission Report No. 245, Law Commission of India, Published July, 2014 (last visited Aug 15, 2019).

[2] “Better that ten guilty persons escape, than that one innocent suffer” , William Blackstone

[3] India: Court Conviction Rate: Economic Indicators: CEIC, India | Court Conviction Rate | Economic Indicators, https://www.ceicdata.com/en/india/crime-statistics/court-conviction-rate (last visited Aug 15, 2019).

[4] Act No. 1 of 1872

[5] Joe McKendrick, How Fast is Artifical Intelligence Growing? Look at the key bellwethers, Forbes (Dec 19, 2018), https://www.forbes.com/sites/joemckendrick/2018/12/19/how-fast-is-artificial-intelligence-growing-look-at-the-key-bellwethers/#778ca7b6474a (Accessed on Aug 3, 2019)

[6] Royal Society & The British Academy, The Impact of AI on Work, Frontier Economics (September 2018), https://www.thebritishacademy.ac.uk/sites/default/files/AI-and-work-evidence-review.pdf, (Accessed on Aug 4, 2019)

[7] Mark Scott, Cambridge Analytica did work for Brexit groups says ex-staffer, Politico.eu, https://www.politico.eu/article/cambridge-analytica-leave-eu-ukip-brexit-facebook/ (Accessed on Aug 14, 2019)

[8] Lasse Schultebraucks, A Short History of Artificial Intelligence, dev.to (Dec 17, 2017), https://dev.to/lschultebraucks/a-short-history-of-artificial-intelligence-7hm (Accessed on Aug 13, 2019)

[9] Jim Goodnight, Artificial Intelligence – What is it and why it matters, SAS, https://www.sas.com/en_in/insights/analytics/what-is-artificial-intelligence.html (Accessed on Aug 2, 2019)

[10]Id

[11] Julie Clegg, The Impact of Artificial Intelligence & Machine Learning on Investigations, World Class Investigation (July 6, 2019), https://www.worldclassinvestigation.com/intro, Accessed on August 12, 2019

[12] Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016

[13] Karim Amer&JehaneNoujaim, The Great Hack, Netflix India (2019), Accessed on August 14, 2019

[14]supra no. 6

[15]LizziGoldmeier, How Artificial Intelligence is Revolutionizing Investigation for Law Enforcement, BriefCam, https://www.briefcam.com/resources/blog/how-artificial-intelligence-is-revolutionizing-investigation-for-law-enforcement/ (last visited Aug 3, 2019).

[16] Act No. 45 of 1860

[17] Sec. 8, Motive, preparation and previous or subsequent conduct

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact ins issue or relevant fact, and whether it was previous or subsequent thereto.

[18] Sec. 14, Facts showing existence of state of mind, or of body or bodily feeling

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, I will or good-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

[19] Sec. 53, In criminal cases previous good character relevant

In criminal proceedings, the fact that the person accused is of a good character, is relevant.

[20] Sec. 54, Previous bad character not relevant, except in reply

In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.

[21]supra no. 17

[22]IvonaCrnoja, Machine Learning and Data Privacy: Contradiction or Partnership?, Digitalist, https://www.digitalistmag.com/digital-economy/2019/05/21/machine-learning-data-privacy-contradiction-or-partnership-06198537 (Accessed on Sept 14, 2019)

[23]Cyberattacks explained: Database Hacking, Valency Networks, https://www.valencynetworks.com/blogs/cyber-attacks-explained-database-hacking/ (Accessed on Sept 15, 2019)

[24] Karen Hao, AI is sending people to jail-and getting it wrong, MIT Technology Review (Jan 21, 2019), https://www.technologyreview.com/s/612775/algorithms-criminal-justice-ai/ (Accessed on Aug 11, 2019)

[25] Lisa Quest, Anthony Charrie&Subas Roy, The Risks And Benefits Of Using AI To Detect Crime, Oliver Wyman – Global Management Consulting Experts & Harvard Business Review, https://www.oliverwyman.com/our-expertise/insights/2018/dec/risk-journal-vol-8/rethinking-tactics/the-risks-and-benefits-of-using-ai-to-detect-crime.html (Accessed on Aug 3, 2019).

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