Audio Recordings as Court Evidence

Sheikh Khâlid b. Sa`ûd al-Rashûd, presiding judge at the Saudi Grievance Board

Feb12 07

Prophet Muhammad (peace be upon him) established the laws and procedures of the Islamic judicial system. He said: “The burden of evidence is upon the plaintiff and a sworn oath is required from the one who denies the accusation.” [Sunan al-Bayhaqî (8/123)] This means that an oath on the part of the defendant is sufficient to overturn an accusation if sufficient evidence is not produced by the plaintiff. Sufficient evidence on the part of the plaintiff, however, cannot be overturned by the defendant swearing an oath. Therefore, the question we wish to ask is: Are audio recordings admissible as evidence, so that the case will rest upon it and not reach a stage where the defendant can overturn it by swearing an oath?

Scholarly Views as to What Constitutes Court EvidenceThis brings us to the important question of what constitutes evidence in an Islamic court of law. Jurists have disagreed about this. We encounter three opinions on the matter in the Islamic legal texts: 1. The only recognized evidence is that which is established and prescribed by Islamic Law for various cases, like two or four witnesses, a witness and a sworn oath, and the like. This is the view of the majority of scholars. 2. Evidence can be defined as a clear contextual indicator. This is the view of Ibn al-Gharas from among the Hanafî jurists. However, some Hanafî scholars have strongly objected to this. 3. Evidence includes every means of arriving at or clarifying the truth. This is the opinion preferred by Ibn al-Qayyim. He was followed in this view by the Mâlikî jurist Ibn Farhûn and by others. This last opinion is the strongest one. It is the view that conforms with the general intent of Islamic Law. Also, if we look at the practice of the Companions, we see that many of them adopted this approach in arriving at their judicial decisions. In light if this, we can turn our attentions to the viability of admitting audio recordings as evidence in a court of law.

Audio Recordings as a Substitute for a Witness’s AttendanceThe admissibility of audio recordings of a witness’s testimony as a substitute for that witness appearing in court depends on whether it is possible for the witness to physically appear. If the witness is able to appear in court, then it is obligatory for the witness to do so. Audio recordings will only be admissible in the event that attendance is impossible.

Audio Recordings as Evidence in the Absence of WitnessesIf the recordings are not a substitute for a witness’s testimony, but provide evidence that sheds light on the validity of the claims being made in the case, then we have to determine the quality of such evidence. After considering the nature of audio recordings, it appears that we can acknowledge them as circumstantial evidence, to the level that they contribute to other available corroborating evidence. Audio recordings do not, however, reach the level of being direct evidence. In other words, they do not constitute proof. The reasons for this are as follows: 1. It is possible to fabricate such evidence by imitating the voice of the person whose voice is desired. 2. If a voice expert or recording expert is brought in to verify the evidence, then it remains the case that the expert relies upon tangible factors that might vary from person to person. The veracity of the recordings remains dependent on the strength of the expert’s opinion and belief. Such belief is not strong enough to establish the right in a legal case. The uncertainty of such evidence is especially true today, with the advancements that have been made in recording and audio rendering technologies. The manufacture of counterfeit evidence is now easier than ever. This leaves the assessment of the strength such evidence ultimately up to the judge’s discretion. The judge must look at all the corroborating evidence and see how all of it fits together. And Allah knows best