Monday, August 15, 2011

Testimony of Dead People from Twitter: Valid Evidence?

I find this tragedy as a case with a very interesting legal feature. Basically, a boy who was driving recklessly caused the death of two of his classmates last saturday morning. How do we know about his reckless driving? Prior to their death, one of the victim shared her experience through Twitter, saying that the boy was entering a drag race with his friends as passengers! Then another victim re-tweeted the tweet, confirming the information about the boy's involvement in the drag race (I have to put a caveat here though, re-tweeting a tweet does not necessarily means that the re-tweeted tweet is true). From the news, I understand that there are two other survivors from this accident, which would be helpful as witnesses in the court. However, let us assume in this case that there is no evidence who can confirm the boy's reckless driving that night. Can we then use the written testimony of his dead friends in Twitter as the basis to punish him in the court?

Legally, this would be a challenge. Under Article 162 of Law No. 8 of 1981 on Criminal Procedural Law ("Criminal Procedural Law"), in case a witness who has provided his/her testimony to the investigator dies before attending the trial, his/her testimony can still be read in the court. If the testimony has been given under an oath, such testimony will be treated equally with a testimony given by a witness who attend the trial. If not, I would say that Article 161 (2) of the Criminal Procedural Law will be applicable, i.e. the testimony will not be considered as a valid evidence although the judge can use it as a supporting information in rendering his decision. In any case, if the minimum rule of two items of evidence cannot be satisfied in the court, such information will be useless.

In our case, however, the victims were already dead before they can say anything to the investigator. Thus, I doubt that their testimony can be considered at all. I also doubt that tweets can be treated as as a Letter Evidence (alat bukti surat), since it must be supported with or made under an oath. And even if it can, it will only work if it is used in conjunction with the information found from other evidence (which is none in our hypothetical case).

As much as I am sympathetic with the victims, I must say that I'm in agreement with the law and I would not support using informal written testimony of dead people as a valid evidence even though it might contain a grain of truth. Why? Simply because you cannot cross examine that kind of testimony and therefore it would be impossible to determine its accuracy. After all, everyone can say anything in their writings, including through Twitter, and we can't verify whether they are telling the truth without further examination.

I can only hope that justice will prevail in this case. Remember, under Indonesian Penal Code, causing death of other people due to negligence is a criminal act punishable by maximum 5 years prison. This is not something that you can get off by simply saying that you're sorry.

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