The Defence of Alibi and the Deceit of Artificial Intelligence -By Esther Pius Ekong

It is a fact that both natural and artificial persons now co-exist. The desperation of the artificial world to replace humans has settled. Unfortunately, humans are yet to realise the impending doom or are nonchalant about the consequences.

Alibi is a criminal defence which means that, at the material time of the alleged offence, the suspect was somewhere else, and could not possibly have committed the crime. It is against the law of nature for a person to be in two places at the same time. An illustration to buttress further, is the case of a young man arrested for murder. The basis of his arrest is a video where he was seen carrying out the act of murder. During his arrest, in handcuffs, he kept shouting, his voice cracking with a mixture of terror and disbelief. “I am not the one! I didn’t do it! I wasn’t there!”. “Story!” the officer said and continued, “Is this not you in this video? You even fired the shot that killed the pregnant woman. Armed robber, you will die in jail”. The suspect cleaned the hot tears from his eyes to have a clearer view of the video playing before him. A debate ensues in his mind: “Am I a twin? Did mummy separate us at birth and never mentioned it?” The figure in the video had his gait, his height, his shoulders, and even the specific scar on his left temple. But he knew with absolute certainty that he had never held a gun in his life, let alone fired a shot and could not have been the one at the locus criminis.

Deceit according to MARIAM MOHAMMED (A.K.A MAMA BLESSING) VS. ATTORNEY GENERAL OF THE FEDERATION (2020) SC ELC AT 3427 was defined as: – “Fraudulent and deceptive misrepresentation… used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the Party imposed upon”. Applying the above definition to the illustrative scenario of the young man arrested for murder earlier stated, AI made a fraudulent and deceptive misrepresentation of him to deceive the security agency who is ignorant of the true facts that he was not at the scene of crime at that material time. That the image was just one of the many tricks of artificial intelligence. It is saddening, especially in a country where condemnation precedes investigation.

Artificial intelligence is a technology that enables computers and machines to simulate human learning, comprehension, problem solving, decision making, creativity and autonomy. It is also the capability of computer systems or algorithms to imitate intelligent human behaviour. In the natural world, life begins from within: it grows with emotions and with slow passage of time. In the world of AI, life is assembled from outside, devoid of soul, groomed by sophisticated machines and chemical processing. Therefore, Imperfectum non parit perfectum.

Omnis indemnatus pro innoxio legibus habetur is being subverted. Artificial intelligence has essentially “bribed” the spirit of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended 2023) such that when the defence of alibi is raised today, it is not just a fight against human witness, but also a fight against a person’s digital ghost. Section 140 of the Evidence Act, 2011 (as Amended 2023), goes thus: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”. If you say you were at home sleeping, while an armed robbery incident took place at the International Conference Center, the law asks you to state the particulars of your whereabouts at the earliest moment. With so much reliance and embrace of AI, how does one establish a “fact” within his sole knowledge? Also, the Yoruba’s will say: “Mi o fe wahala awon Olopa”. I guess you understand.

Before the penetration of AI in the human natural habitat, there are times alibi when raised is not investigated by the security agencies. It is important to note that alibi must be raised at the earliest opportunity. The earliest opportunity is at the office of the security agency, when writing your statement or being interrogated. The mistake some people make is to wait until trial to raise alibi, that will amount to an afterthought and will not avail the accused person. Alibi when properly raised with full particulars avail the accused person. This is the position of the Supreme Court in OKERE VS. IGP (2024) LPELR-62530 (SC), thus: “”Alibi” is a Latin word used which means “elsewhere”. When an accused person raises the defence of alibi, he is telling the Court that he was not at the scene of crime. In other words, that he was at a named place or location at the time the offence for which he is charged was committed and could not have been at the scene of crime at the time the offence was committed. Where the defence is raised, the Police has the duty to investigate the veracity of the facts pleaded as alibi by the accused. Since the facts constituting the alibi raised by an accused person are peculiarly within the knowledge of the accused, and such witnesses that he may provide in support of his plea of alibi, he has the evidential burden to disclose those facts with necessary details and particulars as to time, place and the persons he was with. The disclosure must be made at the earliest opportunity such as to transfer the burden to the Police to investigate. That being so, once the accused person raises the defence timeously with full particulars, the burden then shifts to the Police to investigate in order to verify such a claim. Thus, where the defence is properly and correctly raised and the prosecution fails to investigate the same, the Court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. In such circumstance, it cannot be said that the accused person is the one who committed or participated in the commission of the offence charged.”

However, where there is overwhelming evidence, clearly pointing to the accused person as the one who committed the crime, the accused is said to be the offender, the failure to investigate will not be fatal to the case of the prosecution as enunciated in OSI VS. THE STATE (2024) LPELR-62649(SC), as follows: “Finally there is the question of whether the defence of alibi raised by the Appellant was sufficient to dissuade the two Courts below from convicting him. Whereas the Appellant contended vigorously that the said defense ought to have been investigated, a failure of which was fatal to the case of the prosecution, the Respondent adopted a contrary position. The case of FRIDAY AIGUOREGHIAN & ANOR v. THE STATE (2004) LPELR-270(SC) was relied on where this Court, per Onu JSC held: “It is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there Is stronger and credible evidence before the Court which falsified the alibi.” The assessment of the lower Court was set out on page 395 of the Record as follows: “In the instant case and as earlier stated, there is overwhelming evidence from the prosecution fixing the Appellant at the scene of the armed robbery committed on 24/12/2004, in which case the defence of alibi not being investigated by the police will not be adverse to the prosecution’s case.” I have no reason to come to a different conclusion on this matter. This Court in the case of EGWUMI v. THE STATE (2013) 13 NWLR (Pt. 1372) 525 held that there is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is an inflexible and/or invariable way of doing this. If the prosecution adduced sufficient and acceptable evidence to fix the accused person at the scene of crime at the material time, his alibi is thereby logically and physically demolished”.  With the interference of technology, the conflict seems unending. It is a common fact that the sense organs sometimes play tricks or manipulate perception and reasoning.

Reverting to our illustration, our friend, the young man in the law enforcement agency’s cell, is still pleading, trying to prove to the trained security personnel that there is a conflict in his identity. So funny, by an artificial entity. Will he succeed? Considering the criminal justice system. Something is not right. Humans are now willing toys of AI inventions. Our voices, our eyes, our entire identities are being cloned for financial gains or political sabotage.

A quick digress into family life where adultery is traditionally difficult to prove because of the secretive nature and the impossible task of catching the players in the act. But today, AI can create an adulterous scene without the parties leaving their respective homes and without their knowledge. When AI creates a scene without implications; humans must successfully defend the implications or perish. How does one calm a wife or husband when confronted with a compromised video of their spouse? If the video is successfully proved to be fake, how does one extinguish the seed of suspicion already planted or erase the emotional trauma?

The process of natural life is engaging; the body is active, and our memory is a trusted witness likewise our neighbour. We seem close yet far away, drowning in the sea of artificialism, where a digital ghost is more preferable compared to the living man.

For us naturals, tomorrow is another day, but to the artificial, tomorrow is now. Alibi sometimes is deceptive, now the deceit of AI makes it complicated.

Esther Pius Ekong, a legal practitioner, can be reached via, idangbenedicta@gmail.com