In recent years, confessional statements have become an integral part of criminal investigations and legal proceedings in Nigeria. Video confessions are often seen as powerful tools for establishing guilt or innocence, providing a visual and auditory account of a suspect’s admission. However, the emergence of deepfake technology poses significant challenges to the integrity of these confessions. Deepfakes, which utilize advanced artificial intelligence to create hyper-realistic altered videos, have the potential to undermine the authenticity of recorded statements, complicating the landscape of law enforcement and justice in Nigeria.
Confessional Statement
A confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. A confession made in judicial proceedings is of greater force or value than all other proofs. It occupies the highest place of authenticity when it comes to proving beyond reasonable doubt as held in Osung v State (2012) 18 NWLR (Pt. 1332) 256. Due to its relevance to proving a crime beyond a reasonable doubt, a confessional statement must be given voluntarily. Section 29 of the Evidence Act (as amended) provides that a confessional statement will not be voluntary where the suspect who made it was threatened, induced, or coerced before making the statement. Where any of the above is raised by the suspect, the Court must conduct a trial-within-trial to ascertain the voluntariness of the confessional statements made by the suspects.
Video Confessions and Judicial Decisions
One of the primary functions of the police is to investigate all crimes which are brought to their notice and wherever possible, to bring the perpetrators before the Courts, together with all the relevant evidence. The provisions of Sections 15(4) and 17 of the Administration of Criminal Justice Act (ACJA), provide that where a suspect who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and MAY be recorded electronically on retrievable video compact disc or such other audio-visual means. This is similar to Section 9(3) of the Administration of the Criminal Justice Law (ACJL) of Lagos, with the substitution of “Shall” for “May” thereby already creating a mandatory provision in the ACJL, Lagos as opposed to the discretionary provisions under the ACJA. Over the years, the word “May” under the ACJA has created so much fuss within judicial circles that its true purport remains an illusion.
However, this illusion has been settled in the case of Charles v. State of Lagos (2023) 13 NWLR (Pt. 1901)213, the Court held that it is established that the Courts would interpret the word “May” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen. Also, in the Supreme Court case of Nnajiofor v FRN (2024) 10 NWLR (Pt. 1947) 443, it was held that the word “May” which appears in Section 15(4) of ACJA as regards video confessions has been held not to confer a discretion on the police, but a directory, mandatory, imperative command, and where there is no video recording, the Legal Practitioner of the suspect must be present.
The Emergence of Deepfakery
Deepfakes are the product of Artificial Intelligence (AI) applications that merge, combine, replace, and superimpose images and video clips to create fake videos that appear authentic. Deepfake technology can generate, for example, a humorous, pornographic, or political video of a person saying anything, without the consent of the person whose image and voice are involved. Deepfakes surfaced in publicity in 2017 when a Reddit user posted videos showing celebrities in compromising sexual situations.
The term “deepfake” is derived from a combination of “deep learning” and “fake.” “Deep learning” refers to the training process by which AI technology becomes increasingly intelligent by continuously introducing information into the system. To add context, deepfakes can either be face swaps or voice cloning deepfakes. Face-swapping deepfakes have been used for both malicious purposes and entertainment with notable instances being political manipulation and celebrity impersonations. Voice cloning deepfakes on the other hand manipulate audio content to deceive listeners.
The case of Phyo Mien Thein, a detained former minister is an example of a deep fake which became a meme in Myanmar. Phyo Mien Thein appeared on Myawaddy TV confessing to bribing an ousted leader, Aung San Suu Kyi. Many viewers and journalists recognized that something was off about the video, as his voice sounded altered and more like lip-synched dubbing, prompting immediate backlash.
DEEPFAKERY AND VIDEO CONFESSIONS IN NIGERIA
As earlier stated, Deepfake technology is used to create highly convincing fake audio or video recordings, which could be misrepresented as authentic evidence in court cases and manipulate judges. Surprisingly, discussions on deepfakes within the courtroom thrive on the “liar’s dividend”, which means rather than use deepfakes to offer fake evidence, litigants and defendants have used the existence of deepfakes to argue that real-time evidence linked to them in compromising positions and hurting their cases “might” be fake even though the evidence is genuine.
Furthermore, the introduction of video recordings of confessional statements by ACJA and the ACJL of some other states, then raises the question- Can Video Confessions be shielded from Deep Fakery in Nigeria? Perhaps the most concerning fact about deepfakes in courts is how far-reaching the consequences could be for lawyers, parties in litigation, judges, companies, and governments; and these consequences may arise due to the factors discussed below.
Authenticity and Verification of Evidence:
Deepfake technology allows for the creation of highly realistic fake videos that can manipulate a person’s likeness and voice. This raises serious concerns about the authenticity of confessional videos, making it difficult for law enforcement and judicial bodies to ascertain whether a statement is genuine or fabricated as there is currently no standardized method for verifying the authenticity of video evidence in Nigeria. This lack of infrastructure and legal frameworks makes it easier for deepfakes to infiltrate legal processes, complicating investigations and trials. Deepfake can also be used as a strategy to prove fake alibi and incriminate parties in child custody battles.
Insufficient Legal framework.
There’s no question that Section 84 of the Evidence Act 2011 and its amendments have enhanced the admissibility of electronic evidence in Nigeria. However, the law appears insufficient. This inadequacy largely arises from the absence of procedural guidelines regarding the admissibility of electronic evidence, leaving courts to rely on their discretion in many instances. While the recent amendment addressed some issues by introducing digital and electronic signatures to determine the authenticity of the electronically generated evidence and documents and establishing measures to ensure their integrity, it did not fully tackle the vulnerability of electronic evidence that lacks a digital signature.
Admissibility of Evidence;
The legal system in Nigeria may struggle with the admissibility of video confessions in court, as defense attorneys may argue that such evidence could be tampered with. This could create challenges in prosecuting cases where video confessions are fundamental. Establishing the authenticity of video confessions may shift the burden of proof onto the prosecution to demonstrate that the evidence has not been manipulated, which could complicate legal proceedings and prolong trials.
Technological and Resource Limitations
Many law enforcement agencies in Nigeria lack the technical expertise and resources to effectively detect deepfakes as the proper identification of deepfake videos has not been properly provided for globally. This can result in relying on unverified video evidence, compromising the integrity of investigations. Also, the lack of advanced tools for detecting deepfakes can be costly and may not be readily available to all law enforcement agencies. Subjecting the video to deepfake detection might be costly, and requesting the service of a professional to detect the deepfake is also expensive.
It is paramount to state that even with the above factors, AI is a double-edged sword – it can help defend against and defeat cyber-attacks though it can also be used as a tool for such attacks. Thus, when Courts and stakeholders do catch up to the risks of generative AI and begin to adopt security measures to protect the integrity of their operations, reliable deepfake detection will be crucial in ensuring evidentiary verification.
Going forward, it is recommended that by employing self-authentication, the simulation of the data stored in the computer should be displayed in court and how the data was gotten and stored should also be displayed to the satisfaction of the court. This will not give room for the electronic records to be altered in any form. Also, stakeholders including law enforcement, legal professionals, and policymakers need to develop robust strategies for detecting and mitigating the impact of deepfakes. This may involve investing in technological tools, establishing clear standards for video evidence, and fostering public awareness about the risks associated with deepfakes.
In Conclusion, the intersection of video confessional statements and deepfake technology presents a formidable challenge for the criminal justice system in Nigeria. As deepfakes become increasingly sophisticated, the potential for manipulating video evidence raises critical concerns about authenticity and public trust. Ensuring the integrity of confessional statements is paramount not only for upholding justice but also for maintaining societal confidence in the judicial processes.
Contributors:
Tilewa Oyefeso (Partner)- [email protected]
Dolapo Ogunmoyero (Associate)- [email protected]
DISCLAIMER
This article is for informational purposes only and does not constitute legal advice or establish a lawyer-client relationship. For specific legal advice, please consult a qualified legal professional.
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