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Fake Out: Rising Concerns of Fake Electronic Evidence Making its Way to Courtrooms

3 minute read
Also authored by: Sahar El-Kotob

As a child custody battle unravelled in a U.K. courtroom, the child’s mother introduced voice recordings of her husband as evidence of his dangerous and abusive behaviour. The problem? The husband never made those statements.

The husband’s lawyer swiftly moved to strike these recordings, claiming they are fake. The husband’s lawyer revealed that the wife was using audio manipulation software in an attempt to manipulate the court by providing electronic evidence portraying her husband as a dangerous and abusive individual.

The use of fake electronic evidence has already reached the political world. Political commentators have cited the rising concern in the increase in fake news found online that has led to public confusion. Financial institutions have also raised concerns about the increase of financial fraud due to the use of fake technology in phone scams. In light of a recent Ontario case, it is clear that our courtrooms have not been spared.

The impact of fake electronic evidence entering Ontario court rooms was addressed in Lenihan v. Shankar,[1] an intensely litigated custody, access and mobility claim between the parents of a toddler. In Lenihan, on the fifth day of a four-week trial the Court found a series of shocking forgeries created by the mother: an altered paternity test, a forged “Sperm Donor Agreement”, a fake Instagram account, and a sham email exchange between the father and his counsel, which alleged the planning of a criminal act to remove the mother from the litigation. Similar to the U.K. case, the Court found that the fake evidence was created by the mother to damage the father’s credibility and to ultimately gain a litigation advantage.

With the mass increase of electronic use due to the Covid-19 pandemic, individuals can access the necessary technology and data to generate or alter videos, phone calls, texts, emails, social media accounts, photographs, and even expert reports in a convincing manner. As electronic manipulation keeps getting better it will increasingly become harder to spot, making it more likely for fake electronic evidence to successfully find its way into our courtrooms.

There is little research available regarding how parties in litigation can protect themselves from such evidence. Justice McGee rightfully states in Lenihan that as the courts “transition to a fully digital platform, this trial [is] a stark reminder of the potential for the manipulation and misuse of electronic evidence.” Now, more than ever, electronic evidence should not be accepted at face value without first being substantially corroborated.

Courts, lawyers and litigating parties need to be vigilant to ensure that fake materials are not being submitted as evidence. In her closing remarks, Justice McGee urges lawyers, family service providers, and institutions to be on guard for potential fake electronic evidence, and to be part of a better way forward as the courts cannot do this work alone.

 

[1] Lenihan v Shankar, 2021 ONSC 330.

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