Defence MindHunted

I recently watched a web series on Netflix by name MINDHUNTER. The series  deals with psychological profiling of the most violent criminals in USA and how psychological profiling of convicted criminals can help identifying culprits in pending cases and gather material to prosecute them. It also seeks to inform the public about the psychological symptoms of criminal profiles so that corrective action can be taken early when these symptoms manifest in minor children. However the theme constantly reminds us that not all profiling material can successfully end up in prosecution as lawyers require material that is presentable as evidence in court to prosecute a profiled offender although circumstances change with refining of the scientific methods in each successive case and more profiling material finds its way to prosecution records. I was reminded of the following events when I was watching MINDHUNTER.

We defended a case involving attempted murder of a street-dweller during an attempted chain snatching. Our client was a man named Y. My colleague S had a hunch that Y had a criminal streak but defended the prosecution against him to the best of his ability.  S, however, had a positive opinion of Y’s father, who had referred Y to S. The case ended in acquittal, with most witnesses turning against the prosecution.  Interestingly, the Head Constable, one of the first responders, was recently promoted to Sub-Inspector rank. R met with S and me after the acquittal. He was friendly with S and his colleagues. R commented that while Y was notorious, we had done a good job defending him. S casually mentioned that the father of Y was a good man. R laughingly said that Y’s father was not only aware of his son’s criminal streak but actively encouraged it and profited from all Y’s illegal activities. S was surprised to hear this. Later, S told me he thought it could be true and was only surprised that R had shared it with us. I discussed this with my senior Mr.S.Raghunathan.

My Senior advised that defence lawyers should focus on defending their clients from the “Case of the Prosecution” rather than the “Profile of the Prosecution”.

He explained that the “Profile of the Prosecution” doesn’t exist in legal records but is part of Police Intelligence. Based on his experience and opinion, he believes this is the current standard.

I understand that Judgments in Criminal Trials are outcome of analysis of evidence and not acceptance of Profiling of Accused by the Prosecution. In the 21st Century the lines between the two are getting increasingly blurred because of the fact that Scientific methods of gathering direct evidence of offences results inevitably in profiling. The data about profiling rests within the hands of the Tech Contractors and the Tech Giants whose servers are used for collection, storing and analysis of the data.

Examining the history of criminal jurisprudence in Indian law reveals that scientific methods for obtaining direct evidence of crimes became acceptable only when science and bureaucracy converged, turning scientific records into legal documents. A scientific method that might reveal the truth may not be accepted by the law (another written document). A notable example is the Supreme Court of India's decision to invalidate narco-analysis, polygraphs, and brain activation profiles (BEAPP), as these methods were deemed to violate the fundamental rights under the Constitution of India. It's been nearly 20 years since the Selvi v. State of Karnataka judgment, and today, building a behavior profile is much more objective and driven by algorithms.

The concept of consent has evolved beyond a simple yes or no due to the proliferation of algorithms exploiting human psychology to an extent that challenges the legal fictions underpinning a civilized society. I wonder if these basic legal fictions will endure in the 21st century's age of data and AI, as they tend to collapse in the face of scientific methods.

In Indian criminal trials, a Public Prosecutor is expected not to align solely with the police or the political objectives of a prosecution, which may result from profiling. Instead, they must strive to present evidence that enables the court to uncover the truth. Similarly, the Defense Lawyer is expected to help the court discover the truth by challenging the prosecution's case if necessary, without access to profiling data unless provided by the prosecution. Both sides of a criminal trial must present the truth to the court, albeit from different perspectives. The court is tasked with analyzing the evidence and reaching a just conclusion. Since criminal jurisprudence developed during a time when direct evidence of most crimes was unavailable, the court's conclusion is either true or as close to the truth as humanly possible. In the 21st century, direct evidence of truth is significantly influenced by profiling due to Big Data, AI, and algorithms, which inevitably lead to profiling of accused persons.

What mindset should a criminal lawyer, whether in defence or prosecution, adopt in the 21st century?

Historian Yuval Noah Harari suggests that in a democracy, every institution is either part of the bureaucracy or a totalitarian state, and the legal profession is no exception. Is a lawyer merely a democratic bureaucrat in robes or an agent of a totalitarian regime? A bureaucrat or totalitarian agent is often indifferent to the truth unless it is documented legally.

The scope of truth is limited to the sequence of events documented and approved by law, reflecting the democratic nature of the state where the bureaucrat operates. In an era where bureaucracy is redefined to enhance human interaction with legal documents through algorithms and AI tools that can easily shape public opinion, the true reflection of truth is yet to be determined.

A decade back, I wanted to have an insight into how a cyber forensic laboratory functioned. These were the days before social media emerged as a dominant force of technology and cyber offences were heavily dependent on actual forensic examination of standalone devices. A Senior Prosecutor for the State of Tamil Nadu who later became Deputy Director of Prosecutions, upon discussing my focus in Cyber Crimes and Cyber Forensics, referred me to the Director of the State Forensic Sciences Laboratory to visit the lab. The first question that was asked to me was whether I was from the office of a prosecutor or a defence lawyer. The moment I said that I was from the office of a senior defence lawyer, the remark by the said director was, “ By knowing our methods, you will demolish the police cases and help the accused escape punishment.” I thanked the director for speaking with me and left, which was received with a pointedly ignored silence. I never attempted a similar exercise again since.  This shows that not just Accused persons even lawyers are being profiled by Institutions.

Today, most computer-based evidence in India hinges upon a single piece of paperwork—the certificate under Section 65-B of the Indian Evidence Act 1872/Section 62 of Bharatiya Sakshya Adhiniyam. Most Trial Lawyers stopped active travel beyond this point. It became crucial to halt the acceptance of electronic evidence because no one possesses the means to properly analyze it and persuade the court of its veracity. All the tools are with one side of the field. Compounding to this is the unfettered reach and power of the Super-Gods of Tech— Microsoft, Apple, Google, and Meta. Prosecutions today heavily relies upon printout extracts of social media pages and social media posts as actual evidence of an electronic event.

It not only ended up making cyber crime trials another mere bureaucratic exercise, it also resulted in conflicting precedents from the Judiciary resulting in dilution of the entire gateway to admissibility of electronic evidence. S.65-B/S.62 is now porous as a paper filter where any digital record can get through easily if the conditions are satisfied or if the court interprets a certificate as satisfactory. This includes profiles of scientific methods that can easily demolish Fundamental Rights of Privacy and Self-Incrimination in a heartbeat.

I personally slacked off interest in the latter half of the last decade (2010s) in digital forensics, because it became increasingly of little use in a Bureaucratic and a Tech Giants-driven world. Methods of gathering digital evidence became increasingly difficult to dissect and the successive judicial pronouncements in dilution of S.65-B did not do any assistance in this area. In this decade, I am seeing a reversal of sorts where prosecution presents copies of electronic records without forensic method retrieval (example CCTV Footage and Voice Records)

and defence lawyers are expected to examine the same and attack them for lack of chain of custody and lack of truth thereof. Adhering solely to S.65-B is no longer adequate; no defense attorney can risk allowing something so potent and capable of misrepresenting the truth to be admitted as evidence. The catch here is that, the tools to effectively examine such digital data are shut out from the reach of Defence Lawyers. The excuse that Defence Lawyers can engage Industry Experts holds no water because almost every Industry Expert believes that profiling with the assistance of Technology does much good to the society.

Companies who build such tools find it easier and lucrative to collaborate with institutions such as the police and judiciary. There is no business benefit for software companies in collaborating with defence lawyers, apart from the possible repercussions of getting their businesses cold-shouldered or edged out by state-sponsored competition. The Doors to Scientific Methods such as forensics and criminal psychological profiling are effectively shut out for defense lawyers due to the fact that access to such methods are not only costly but are also under constant surveillance by the companies themselves as to who gains access to what. Scientific Methods are no longer standalone tools rather are connected to the cloud hosting of the proprietor company. Its just how the technology business models are built and vendors want to control who uses their technology and who can be denied.

Most defence lawyers hence have only one avenue to obtain tools for themselves: the criminal underworld and freelance experts. Access to this comes from clients for whom prosecutions are a matter of life and death. The scope of the knowledge here is limited and unverifiable by the defence side because of the fact that much of tech knowledge today rests behind the curtain of intellectual property rights protection. Such knowledge when presented to the court is often viewed with suspicion as having emanated from a possibly dubious source. Added to the fact that police intelligence can easily trace out the source of the knowledge and consequently the defence lawyer and his client and their knowledge base come under some form of pressure from the law enforcement. Earlier, it was possible for defence lawyers to lead a very frugal lifestyle as legal practice did not require much other than printed law journals, case papers and maybe an office. Indian Law exempts houses of lawyers being treated as commercial spaces for essential services. In the 21st century, significant financial investment is required to provide a defense lawyer with laptops, printers, and smartphones, not to surpass the competition, but simply to function as a lawyer. All these activities leave digital footprints and an alliance between institutions and tech giants can easily deny information to criminal defence lawyers.

What then might be the solution I wonder? The probable answers are that our institutions such as the judiciary, legal profession and bureaucracy need to urgently acknowledge the fact that Truth often emerge from the darkest of places. Closing our Eyes to the Darkness only Shuts Out the Truth. Our Institutions need to give more weightage to Social Values, Dissect technological opinions of evidence, into technological methods of evidence gathering with the same lens as we viewed Nazi Zyklon- B Gas Chambers. Institutions in Criminal Justice System need to demand open and free access to scientific methods of profiling, forensics for all parties in a criminal trial.

In the 21st century, Criminal Justice Institutions should not allow any party, including the prosecution, to intimidate the Accused and Defense with evidence merely because some technology is involved in obtaining it. This is crucial because the State might present opinions that some Accused cannot verify due to the inaccessibility of necessary tools.