Admissibility Of Forensic Evidence In The Court Of Law With

Constitutional Validity(Article 20, 21 And 22)

By Rajshree Sable

Contents • What is evidence & forensic evidence?• What is admissibility & validity?• Article 20, 21, 22 of Indian constitutional Act• Narco-Analysis & its constitutional validity • DNA fingerprinting & its constitutional validity • Polygraph test & its constitutional validity • Conclusion • References

Definition Of Evidence • It includes testimony, documents, photographs, maps and

video tapes. • Trial evidence consists of: 1. The sworn testimony of witnesses, on both direct and

cross-examination, regardless of who called the witness. 2. The exhibits which have been received into evidence. 3. Any facts to which all the lawyers have agreed or

stipulated.

• The Law of Evidence can be defined as those rules which directly or indirectly:

1. Control what evidence may be received; 2. Control the manner in which evidence is presented and

received; 3. Control how evidence is to be handled and considered once

it is received and what conclusions, if any, are to be drawn from particular classes of evidence;

4. Specify the degree of satisfaction that the tribunal of fact must attain in determining whether a fact in issue is established and the consequences if such a level of satisfaction is not reached.

• Definition of forensic science:• Sciences used in forensics include any discipline that can

aid in the collection, preservation and analysis of evidence such as chemistry (for the identification of explosives), engineering (for examination of structural design) or biology (for DNA identification or matching).

• Forensic evidence- • Evidence usable in a court, specially the one obtained by

scientific methods such as ballistics, blood test, and DNA test.

• Also forensic evidences are those who have strong scientific background to prosecute the trial in a court of law.

• RELEVANCY• The principle that "relevance is an affair of probability and not of

certainty”. • Discussions on relevancy can conclude that the various definitions

given by distinguished jurists will help only to get a theoretical basis about the concept of relevance and it cannot provide a better help to determine relevancy.

• ADMISSIBILITY• Evidence, if relevant need not be admissible. Concept of

admissibility is negative. • A piece of evidence is inadmissible if it is rejected for some reason

other than immateriality or irrelevance, and it is admissible if there is no rule for its rejection other than materiality or relevance.

• Science became an active truth finder in legal field. Reliability is the reason that makes the scientific proof more attractive.

• INDIAN CONSTITUTIONAL ACT, 1949.• PART III• FUNDAMENTAL RIGHTS• Right to Freedom• Article 20. Protection in respect of conviction for offences.-(1) No person shall be convicted of any offence except for violation of a

law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

•Article 21. Protection of life and personal liberty.-•No person shall be deprived of his life or personal liberty except according to procedure established by law.

•Article 22. Protection against arrest and detention in certain cases

(1)No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice .

(2)Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate

(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order

(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose

(7) Parliament may by law prescribe • (a) the circumstances under which, and the class or classes of

cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );

• (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

• (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4) Right against Exploitation

Forensic admissibility of Narco-Analysis

• introduced in 1936. termed as psychological third degree method

• “Clause (3) of Article 20 declares that no person accused of an offence shall be compelled to be a witness against himself. This provision may be stated to consist of the following three components:”

• 1. it is a right pertaining to a person accused of an offence • 2. It is a protection against compulsion to be a witness; and • 3. It is a protection against such compulsion resulting in his

giving evidence against himself. For invocation of Article 20(3) of the constitution of India all the three ingredients must co-exist.

• NARCO ANALYSIS FROM LEGAL POINT OF VIEW • do not have any legal soundness• violate Article 20 (3) of the Indian Constitution which is the main

provision on the subject of crime investigation and trial. It deals with the privilege against self incrimination.

• raises point of genuine issues like encroachment of an individual‘s rights, Liberties and freedom.

• In CrPC the legislature has protected a person‘s right against self-incrimination under section. The right against forced self-incrimination, widely known as the Right to Silence is 161(2)

• Certain urgings have been made that Narco analysis comprises of mental torture and hence violates the ―Right to Life as mentioned in Article 21 as it deals with right to privacy.

• Evidentiary Value of Narco Analysis Test• does not carry any evidentiary value and the Constitution

of India (Article 20) is an absolute injunction against any attempt to make a law giving evidentiary value to it.

• There is no scientific evidence also to show that this is a test where the truth can be got from a person in a really foolproof manner

Forensic Admissibility of DNA Fingerprinting• first reported in the year 1984 by Sir Alec Jeffrey at the University of

Leicester in England. • The admissibility depends on its accurate and proper collection,

preservation and documentation for it’s reliability.• Section 53 of Code of Criminal Procedure 1973 authorizes a police

officer to get the assistance of a medical practitioner in good faith for the purpose of the investigation.

• The amendment of CrPC by the CrPC (Amendment) Act, 2005 has brought two new sections which authorizes the investigating officer to collect DNA sample from the body of the accused and the victim with the help of medical practitioner.

• Right to Privacy has been included under Right to Life and Personal Liberty or Article 21 of the Indian Constitution, and Article 20(3) provides Right against Self-Incrimination which protects an accused person in criminal cases from providing evidence against himself or evidences which can make him guilty.

• These are the articles which violates the fundamental rights of the individual. But after the judgments of judges it is said that, the Constitution gives protection to a person not to be a witness against himself. However, "to be a witness" is not equivalent to "furnishing evidence" in its widest term and significance.

• From this it appears that there will be no constitutional restriction on the collection of samples for DNA analysis.

Constitutional Validity of Polygraph(lie detector)

• invented in 1921 by John Augustus Larson, a medical student at the University of California at Berkeley and a police officer, California.

• measures and records several physiological indices such as blood pressure, pulse, respiration, and skin conductivity while the subject is asked and answers a series of questions.

• deceptive answers will produce physiological responses that can be differentiated from those associated with non-deceptive answers

Administration of test • a pre-test interview to gain some preliminary information. • Some of the questions asked are "irrelevant" others are

"diagnostic" questions, and the remainder are the "relevant questions".

• The test is passed if the physiological responses to the diagnostic questions are larger than those during the relevant questions (RQ).

• Validity-• little evidence to support its use • the National Research Council has found no

evidence of effectiveness. • The utility among sex offenders is also poor. • a significant number of subjects will appear to be

lying, and would unfairly suffer the consequences of "failing" the polygraph.

• The lie detector tests are violate of Article 20 (3) that, No person accused of any offence shall be compelled to be a witness against himself.

Conclusion

• On May 5, 2010, The Supreme Court of India declared use of Narco-Analysis, brain mapping and polygraph tests on suspects as illegal and against the constitution. As they are violating fundamental rights of Indian constitutional Act mainly Article 20(3) that no person accused of an offence shall be compelled to be a witness against himself & Article 21. The use of these techniques are not to give verdict but used for further investigation. But DNA fingerprinting is acceptable due to statements given by the judges & and having strong scientific backbone adherence.

References • Website Links-• http://www.legalblog.in/2011/05/narco-analysis-polygraph-

tests.html• http://www.legalserviceindia.com/article/l375-Article-20-%283%29-

Of-Constitution-of-India-And-Narco-Analysis.html• http://en.wikipedia.org/wiki/Polygraph• http://www.legallyindia.com/easyblog/admissibility-of-dna-

technology-in-the-indian-legal-system-html• http://indiankanoon.org/doc/1199182/ • PDF -• Determining Probative Value And Admissibility Of Scientific Evidence• Narco-Analysis and its Evidentiary Value in India by Barcelona

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