A need to define forensic expertise
Parliament recently overhauled the country’s criminal codes by passing three bills related to both substantive and procedural law. Section 176(3) of the Bharatiya Nagarik Suraksha Sanhita has mandated compulsory examination of a crime scene by forensic experts in offences where the prescribed punishment is seven years or more. With this, forensic experts now have a front seat in India’s criminal justice administration. The new provisions necessitate augmentation of resources in terms of trained experts and forensic laboratories, as well as capacity building of stakeholders such as the police, prosecutors, judges and lawyers.
Forensic science has continuously evolved to reduce human errors and cognitive biases in judicial decision-making. With its scientific basis, neutrality and impartiality, forensic opinion fosters confidence in reaching the truth behind a fact, which is necessary for delivering justice. It must be noted that forensic experts’ opinion is not error-free in absolute terms—hence forensic reports are used for corroboration in judicial proceedings. Minimising the scope of errors in expert opinion remains a daunting challenge, which can be addressed at two levels—defining an expert and whether the methods used to deduce an expert opinion are reliable and accredited.
First, the definition of a forensic expert needs urgent attention. Section 45 of the Indian Evidence Act of 1882 describes an expert. It says that when the court forms an opinion on foreign law, science or art—or, say, has to identify handwriting or finger impressions based on the advice of persons specially skilled in those fields—then such persons are considered experts. Interestingly, the term ‘forensic’ does not figure in the entire Evidence Act. The expression ‘specially skilled’ is also not defined in the Act, resulting in the conundrum of who an expert is.
The Supreme Court, in Chand Batra vs the State of UP (1974), accepted an excise inspector as an expert who was to determine by smell test whether the liquor was illicit since he had gathered vast experience in dealing with such cases. Such imperfect, subjective legal interpretation poses the serious risk of miscarriage of justice, including wrongful convictions which would erode public trust in the legal system.
In the State of Himachal Pradesh vs Jai Lal (1999), the Supreme Court elucidated on the expression ‘specially skilled’, and said an expert must have made a special study or acquired a special experience. Thus an expert must be skilled with adequate subject knowledge. Section 39 of the new Bharatiya Sakshya Act is almost a replica of the old provisions on experts, except it includes “any other field” to embrace other disciplines of expertise. The segment titled “Opinion of third persons when relevant” necessitates a revisit to remove the continuing ambiguity in procedural law.
English law on experts also suffers from a similar ambiguity. It appears that Common Law countries have mostly borrowed the UK model. However, Article VII (Rule 701 to 706) of the US Federal Rules of Evidence is comprehensive on opinions and expert testimony. Rule 702 describes that a witness who qualifies by knowledge, skill, experience, training or education is an expert. For admissibility of expert testimony, this rule provides four prerequisites: (i) the expert’s specialised scientific or technical knowledge’s role in understanding the fact or evidence; (ii) testimony based on sufficient facts or data; (iii) testimony as the product of reliable principles and methods; and (iv) the expert has reliably applied the principles and methods to the facts of the case. This legal provision prevents unreliable ‘junk science’ from being heard as evidence.
In France, experts are often selected by judges from lists published by the courts. The experts are obligated to adhere to a code of conduct established by the Conseil National des Compagnies d’Experts de Justice, a professional regulatory body, to ensure due process, impartiality and independence.
In Australia, merely possessing a particular qualification doesn’t guarantee expertise, unless it explains how the specialised knowledge applies to the facts at hand. These well-defined, holistic international benchmarks to ensure an intelligent and reliable evaluation of facts stand in stark contrast to India’s abstract system.
An expert is not a witness of fact, but he advises the court to understand the facts. An expert opinion per se is considered advisory and persuasive if it is intelligible, convincing and based on sufficient data derived from steadfast principles and methods. Expert opinion, once admitted, becomes an opinion of the court. Thus, expert opinion fortified with neutrality and scientific validation plays a crucial role as inculpatory evidence to prove guilt beyond a reasonable doubt, as well as exculpatory evidence to establish the innocence of an accused.
To annul ambiguity, it is proposed to define an expert as “a specially skilled person having essential education, knowledge, experience, skill, and training of the subject who provides an expert opinion based on reproducible, sufficient facts or data derived from reliable and accredited principles and methods”. Further, India may want to introduce an autonomous ombudsman like the Texas Forensic Science Commission to regulate, facilitate and advance the credibility and probity of expert opinion.
(With inputs from Kartikey Singh, BA LLB candidate)
(Views are personal)
G K Goswami, Senior IPS officer, Fulbright fellow and Founder Director of UP Institute of Forensic Science