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Sole Witness: Should the Hearsay Rule be Amended to Make Room for AI?

Sole Witness: Should the Hearsay Rule be Amended to Make Room for AI?

Knowing your 'smart' device may be listening may be a slight comfort in a serious incident, but would such evidence even be admissible under Australian law?

7th March 2019

Strict legislation governs the admissibility of evidence in Australia, but the witnessing of a crime by an artificial intelligence (AI) device seeks to test the law’s adaptability to technological innovation.

We’ve previously written on the privacy concerns of AI witnesses in Can Virtual Home Devices Be Legal Witnesses? This article questions whether the hearsay rule could prevent AI witnesses from even reaching that point.

A Prospective Issue

Two cases in the United States involving Amazon Echo recordings have highlighted the concerns of the hearsay rule in adapting to technological innovation.

Both Victor Collins and Christine Sullivan died within houses containing Echos, leading police to seize the device in their investigations. Prosecutors dropped the murder trial involving Collin’s death before the evidence could be admitted and the Sullivan investigation is ongoing.

Yet the possibility of AI devices ‘overhearing’ crimes has sparked debate over AI witnesses under hearsay rules.

The remainder of this article will evaluate how Australian law might deal with an AI witness.

Admissibility of Evidence

Under the Evidence Act 1995 (Cth), relevant factors determining the admissibility of an AI witness are whether:

  • the evidence is relevant;
  • the hearsay rule applies; and
  • discretion to exclude the evidence should or must be exercised.

Relevance

Relevant evidence is essentially evidence that could rationally affect the determination of a fact.

Thus, depending on circumstances a device recording helpful to establishing an important fact of a case will likely be relevant.

The Hearsay Rule

In essence, the hearsay rule deems evidence that you have not perceived yourself inadmissible.

The rule ensures witnesses can be properly cross-examined and their ‘truthfulness and powers of memory, recall, perception and narration’ tested, per Pollitt v The Queen.

The closest precedent to the admissibility of an AI recording is the High Court’s ruling on tape recordings in Butera v DPP.

Hearsay and Tape Recordings

Generally, for a tape recording’s admissibility beyond relevance, it needs some form of corroboration to identify the recorded voices. Usually, witness testimony is sufficient, which will presumably complicate cases where the AI device is the sole ‘witness’.

Tape recording admissibility further requires the proving of ‘provenance’ of the tape. According to Butera, this boils down to the tape’s authencity which once ‘satisfactorily proved, no question of its credibility can arise’.

Therefore, once proved relevant and authentic, only voice identification stands in the way of admissibility at common law.

Discretionary and Mandatory Exclusions

The last obstacle to an AI device’s admissibility is the Evidence Act‘s discretionary and mandatory exclusions.

A court will need to determine the probability of evidence in:

  • unfairly prejudicing a party;
  • misleading or confusing a jury;
  • causing or resulting in an unwarranted waste of time; or
  • being improperly or illegally obtained.

These considerations may lead to the limiting or exclusion of evidence.

This is entirely dependent on the sound recording and a court’s opinion. If a court is of the opinion that admitting a sound recording will unfairly affect the minds the jury – such as where a phrase could be interpreted in conflicting ways – then the recording will probably be excluded.

Final Thoughts

The law has not established the admissibility of evidence provided by an AI device and, as a result, it is unclear what a court may rule in similar circumstances to those around the deaths of Victor Collins and Christine Sullivan in the US.

The main issue with an AI witness – not present in other sound recording devices – is that it does not necessarily require someone manually ‘switching it on’ to record. As a result, cases could arise where an AI device is the sole witness of important facts and becomes inadmissible as a result. Such a situation might require a skilled lawyer to persuade the court.

Thus, the Evidence Act should be amended to provide a hearsay exception to AI devices subject to discretionary and mandatory exclusions. Andrea Roth states that using existing rules to legislate machine conveyance ‘have not been wholly unsuccessful … they are intellectually incoherent and fail to fully empower juries to assess machine credibility’.

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Author
Shaheen Hoosen

Shaheen is a Legal Tech Intern at Lawpath as part of the Content Team. He is in his final year of a Bachelor of Laws with the degree of Bachelor of Information Technology (Major in Information Systems and Business Analysis) at Macquarie University. He is interested in IT Law and Access to Justice.