Forensic Expert Evidence Clauses 176(3), 329, 330 and 349.

Forensic Expert Evidence Clauses 176(3), 329, 330 and 349.

The use of technology and forensic sciences in the criminal justice system is a stated aim of the BNSS.153 This part discusses the main provisions that deal with the use of forensic evidence i.e. Cls.176(3), 349, 329 and 330. Cl.176(3) introduces a new requirement to the procedure for investigation prescribed under s.157 CrPC i.e. collection of forensic evidence from crime scenes by a forensic expert. Cl.349 expands the types of forensic samples that may be collected from any person upon a Magisterial order under s.311A CrPC. Corresponding to s.293 CrPC, Cl.329 BNSS retains the exemption for certain government scientifi c experts from appearing as witnesses before the court. Cl.330(1) adds a new proviso to s.294 CrPC regarding when formal proof of documents is not required. This proviso disallows calling any experts to appear before the court, unless the genuineness of their report is disputed by the parties. It is evident from these changes that the BNSS seeks to expand and enhance the State’s power to collect forensic evidence, both from crime scenes and individuals, while simultaneously reducing the scope of examination of forensic experts. I. Enhanced Evidence Collection from Crime Scenes Cl.176(3) introduces a mandate for the collection of forensic evidence at the crime scene by a ‘forensics expert’ in all offences punishable by imprisonment of seven years or more. The clause prescribes a fi ve-year period regarding the implementation of the provision. However it is unclear whether the time limit has been prescribed for states to notify the date of implementation (which may be beyond the fi ve-year period), or for the implementation of the provision itself. Considering the lack of statutory requirements on crime scene management, the introduction of this clause is a signifi cant step towards ensuring proper collection of forensic evidence from crime scenes in serious cases. Currently, the practices for evidence collection vary across states. In many states, scientifi c staff from 153 Statement of Objects and Reasons, BNSS.  forensic science laboratories (FSLs)154 or District/Mobile Forensic Science Units (DFSU/MFSU)155 may also be called for crime scene visits by police offi cials depending on the nature of the case.156 Additionally, in states such as Karnataka, the state police have created posts to hire civilian forensic experts as Scene of Crime Offi cers (SoCOs) to assist with crime scene management.157 Thus, while mandating evidence collection by an expert is a positive change, implementation of the measure may prove challenging in the current forensic science system. a. Broad Scope of ‘Forensics Experts’ could include Private Experts Under Cl.176(3), the term ‘forensics expert’ could include both government (FSL offi cers or SoCOs working with the police), as well as private forensic experts. Currently, the CrPC permits reliance on registered medical practitioners who are privately employed, to conduct medical examinations.158 Medical professionals are regulated by the National Medical Commission through a system of registration and licensing, along with standards monitoring their professional conduct. On the other hand, there are presently no oversight mechanisms or standards to regulate the system of forensic science education or profession in India.159 In this context, allowing private forensic experts to assist with crime scene examination, without any regulatory body to ensure their profi ciency or compliance with professional and ethical standards, would be problematic and should be reconsidered. 159 Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 2: Recruitment, Education & Training, Page 112. 158 Ss.53, 53A, 54 and 164A CrPC: references to registered medical practitioners. While s.53 may include any registered medical practitioner (whether employed within a state hospital or institution or not), ss.53A, 54 and 164A CrPC state a preference for government medical practitioners, and in case they are unavailable, then any other registered medical practitioner. 157 The Hindu, ‘In a fi rst, Karnataka to have ‘scene of crime offi cers’’, (The Hindu, 13 July 2021). 156 Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 3: Case Management, Pages 152-153. 155 Directorate of Forensic Science Services, Ministry of Home Affairs, ‘DFSS Report 2018-2022’: there are 552 mobile forensic science units in India. 154 Directorate of Forensic Science Services, Ministry of Home Affairs, ‘DFSS Report 2018-2022’, Page 16: There are 145 FSLs in India, comprising 7 Central, 32 State and 106 regional laboratories.  b. Potential issues with involving FSL Experts for Crime Scene Visits Forensic scientists currently working in FSLs would be covered within the term ‘forensic experts’ under this provision for crime scene examination. The same experts may proceed to examine the evidence collected from the crime scene within the FSL as well. This poses a serious risk for issues of cognitive and contextual bias, as the forensic examiner would be exposed to a wide range of task-irrelevant information during the crime scene inspection.160 In case accused persons or witnesses are present during the crime scene examination, the forensic expert may be exposed to confession by the accused, witness statements, or other information which may be irrelevant for their forensic examination, such as the gruesome nature of the crime scene. Further, visiting crime scenes in addition to grappling with a heavy caseload, with vacancies in their divisions, is often demanding for forensic examiners.161 The necessary infrastructure for crime scene visits and evidence collection, in the form of mobile vans equipped with the requisite instruments and material, would also require signifi cant investment across sta

II. Wider Evidence Collection from Individuals The power of Magistrates to order collection of forensic samples from individuals under s.311A CrPC has been expanded by Cl.349 in two signifi cant ways. Firstly, the types of samples that may be collected have been expanded from signatures and handwriting to include fi ngerprints and voice samples162 as well. Secondly, in 162 Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1: The Supreme Court held that collection of voice samples from an accused vide Magisterial order under s.91 CrPC does not amount to a violation of their right against self-incrimination under Art.21. 161 Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 3: Case Management, ‘Challenges in crime scene & court visits’, Page 152: Between 2013-2018, 40.3% of the total sanctioned posts were vacant, out of which 69.6% of the posts were for scientifi c staff; Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 2: Recruitment, Education & Training, Pages 95-104. 160 Itiel Dror, Cognitive and Human Factors in Expert Decision Making: Six Fallacies and the Eight Sources of Bias, Analytical Chemistry, Volume 92, Issue 12, June 2020, Pages 7998-8004: describes eight sources of bias in scientifi c experts including contextual bias, discussing how contextual information about the case creates expectations that infl uence calls made during scientifi c analysis and interpretation of results; Itiel Dror, Justice Bridget M McCormack & Jules Epstein, Cognitive Bias and Its Impact on Expert Witnesses and the Court, The Judges Journal, Volume 54, Issue 4, (2015), Page 8.  addition to ordering collection of samples from persons who may have been previously arrested in connection with the investigation as provided in s.311A, under Cl.349 the Magistrate can order collection of samples from any person while providing the reasons for such collection in writing.163 a. Expanding the scope of collection of Personal Data Concerns regarding the expansive powers of collection of personal data under the CPIA hold true for Cl.349 as well.164 Under Cl.349, fi ngerprint and voice analysis samples can be collected from any person with reasons to be recorded in writing. There is no requirement for establishing either the person’s connection with the offence or the relevance of their samples to the criminal investigation. Given that the samples sought to be collected constitute an individual’s personal data, this raises serious concerns regarding the disproportionate impact on the right to privacy. This gains particular signifi cance in light of questions regarding the validity and reliability of these forensic techniques and the existing practices in forensic science laboratories in India. 1. Fingerprint Examination Studies on the accuracy of fi ngerprint analysis have found different false positive rates (1 in 306 in a 2011 study and 1 in 18 in a 2014 study).165 In case of two fi ngerprints from different sources that have many common features and few dissimilarities (close non-matches), the error rate is as high as 28.1%.166 This raises critical questions regarding the perceived accuracy and infallibility of fi ngerprint comparison that currently exists within the criminal justice system. Besides the high 166 Jonathan Koehler & Shiquan Liu, Fingerprint Error Rate on Close Non-Matches, SSRN, August 2020. 165 United States President’s Council of Advisors on Science and Technology (PCAST), ‘Report to the President - Forensic Science in Criminal Courts: Ensuring Scientifi c Validity of Feature-Comparison Methods’, September 2016: cites, amongst others, these studies:- Pacheco et al., ‘Miami-Dade Research Study for the Reliability of the ACE-V Process: Accuracy & Precision in Latent Fingerprint Examinations’, 2014; Ulery et al., Accuracy and Reliability of Forensic Latent Fingerprint Decisions, Proceedings of the National Academy of Sciences, Volume 108, Issue 19, 2011, Pages 7733-7738. 164 Project 39A, Research Brief: Analysis of the Criminal Procedure (Identifi cation) Act, 2022, September 2022, Pages 38-41: Issues of scientifi c validity forensic disciplines. 163 There is an overlap between Cl.349 BNSS and the provisions under the CPIA, which replaced the Identifi cation of Prisoners Act, 1920. CPIA permits the collection of a wide range of personal data or ‘measurements’ from convicted persons, arrestees, and persons under preventative detention. The Magistrate may also direct any person to give their measurements, if it is considered ‘expedient’ for the investigation. 60 rates of error in fi ngerprint examination which impact its reliability, there is also a lack of empirical evidence of the ‘uniqueness’ of fi ngerprints.167 Further, many studies have found that fi ngerprint examiners are susceptible to issues of confi rmation (where examiners are prone alter the features they mark in an unknown fi ngerprint based on the features seen in the known fi ngerprint) and contextual bias (where the examiners’ decision-making is infl uenced by task-irrelevant information), which raises concern about the reliability of fi ngerprint examination.168 2. Voice Analysis Characteristics which impact voice comparison, such as the relevant linguistic population, conditions in which the voice recording was made, and storage and transmission conditions of the voice clip, vary greatly.169 The characteristics of a single individual’s voice in saying the same thing also varies from one instance to another, depending on the language, accent, dialect, speaking style, and their emotional and physical condition.170 Voice analysis can be done through various kinds of methods, and while jurisdictions move from highly subjective methods to more objective ones based on automated software,171 empirical research to validate and measure the accuracy of different forensic voice comparison systems is 171 Andrzej Drugajlo et al., Methodological Guidelines for Best Practice in Forensic Semiautomatic and Automatic Speaker Recognition, European Network of Forensic Science Institutes, 2015. 170 Geoffrey S Morrison & William C Thompson, Assessing the Admissibility of a New Generation of Forensic Voice Comparison Testimony, Colum. Sci. & Tech. L. Rev., Volume 18, 2017, Page 337. 169 Geoffrey Stewart Morrison, Ewald Enzinger, Multi-laboratory evaluation of forensic voice comparison systems under conditions refl ecting those of a real forensic case, Speech Communication, Volume 110, 2019. 168 United States President’s Council of Advisors on Science and Technology (PCAST), ‘Report to the President - Forensic Science in Criminal Courts: Ensuring Scientifi c Validity of Feature-Comparison Methods’, September 2016, Pages 98-102. 167 William Thompson, John Black, Anil Jain and Joseph Kadane, ‘Latent Fingerprint Examination, Forensic Science Assessment: A Quality and Gap Analysis, American Association for the Advancement of Science (AAAS), 2017, Report 2, Pages 13-16; SWGFAST Individualisation/Identifi cation position statement, Document #103.  ongoing. Until the scientifi c foundations of voice analysis have been tested, legal reliance on such evidence has been cautioned against.173 3. Lack of Validation of Procedures in Indian FSLs Besides issues with the validity and reliability of fi ngerprint and voice analysis methods, there is also an issue of quality management within Indian forensic practice, to ensure that the forensic methods have been correctly applied in an individual case. Besides the absence of best practices or guidelines for laboratories to undertake such examinations,174 FSLs widely lack their own working procedure manuals (WPMs). WPMs provide stepwise instructions on all aspects of the forensic examination. Such manuals should be prepared after internal validation studies to ensure that these procedures perform as expected within the laboratory’s set-up and provide accurate results.175 Thus, the move to collect more personal data from a wider group of people, without proper procedures within FSLs to ensure reliable analysis, needs further consideration.

III. Exemption to Forensic Experts from Judicial Scrutiny Corresponding to s.293 CrPC, Cl.329 allows the submission of a report by a government scientifi c experts as evidence, without requiring their oral testimony in court as a witness. Cl.329 expands the categories of experts exempted from court deposition: any scientifi c expert certifi ed by the central or state governments (which can include private experts) may be notifi ed under the clause. 175 Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 5: Quality Management, Pages 207-209, 212-213: ‘Trends’ and ‘Lack of Internal validation & WPMs’. 174 While the Directorate of Forensic Science Services publishes best practices and guidelines for different forensic disciplines, it has not yet published them for fi ngerprint examination or forensic voice comparison. 173 Catanzaro et al., ‘Voice Analysis Should be Used with Caution in Court’, (Scientifi c American, January 5 2017), last accessed on 19.10.2023; Geoffrey S Morrison & William C Thompson, Assessing the Admissibility of a New Generation of Forensic Voice Comparison Testimony, Colum. Sci. & Tech. L. Rev., Volume 18, 2017, Pages 326-434. 172 The Speaker Recognition Subcommittee of the US National Institute of Standards and Technology (NIST) is developing various studies on forensic speaker recognition to understand the effect of different conditions on speaker recognition and validating its use which may assist with the assessment of its admissibility.  a. Background S.293 CrPC draws from s.510 under the 1882 and 1898 CrPC, which stipulated that reports of Chemical Examiners could be used as evidence in court. While under the current CrPC 1973, s.293 grants courts the discretion to summon the exempted experts as witnesses, it allows the experts to depute a fellow expert to depose to the contents of the report on their behalf. Cl.329 widens the exemption from oral examination for forensic experts.176 This exemption to experts from fulfi lling their duty to the court is in stark contrast to the law in other jurisdictions,177 including the United Kingdom, where courts must provide reasons for not examining an expert whose report has been admitted as evidence.178 b. Confl ict with s.45 of the Indian Evidence Act, 1872 and issues of Fair Trial S.45 IEA permits reliance on opinions of experts on a diverse range of areas, including on matters of science. Courts have held that despite the specialised nature of expert evidence, the accuracy and reliability of the expert’s fi ndings should be independently reviewed, based on the data and materials underlying the examination.179 In Rahul v. State (NCT of Delhi),180 the Supreme Court disregarded the DNA evidence on the basis that the lower courts had failed to examine the underlying basis of the DNA report and whether the expert had reliably conducted the examination. However, Cl.329 impedes any meaningful judicial scrutiny of forensic evidence. Although sub-clause (2) formally allows judicial discretion to summon and examine experts, in practice this depends upon an application by the defence explaining 180 Rahul [38]. 179 State of Himachal Pradesh v. Jai Lal (1999) 7 SCC 280 [18]; Ramesh Chandra Aggarwal v. Regency Hospital (2009) 9 SCC 709 [16]; Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263; Pattu Rajan v. State of Tamil Nadu (2019) 4 SCC 771 [51]; Rahul v. State (NCT of Delhi) (2023) 1 SCC 83 [38]. 178 S.30 of UK Criminal Justice Act, 1988: the permission of the court must be sought in case the expert does not depose. The court shall consider the reasons for seeking exemption and the unfairness that it may cause the accused. 177 Melendez-Diaz v. Massachusetts 557 US 305 (2009). 176 Project 39A, ‘Forensic Science India Report: A Study of Forensic Science Laboratories (2013-2017)’, Chapter 7: Law on Expert Evidence, ‘Procedural law on the examination of experts’, Pages 253-254: Concerns regarding s.293 generally.  why the particular expert ought to be summoned.181 This inhibits meaningful examination of forensic evidence and makes it dependent on the quality of legal representation. Without oral examination of experts, courts cannot properly examine issues regarding the admissibility and weight of the forensic evidence. This includes the foundational validity of the techniques used, qualifi cations and necessary experience of the expert in that type of examination, and whether they reliably performed it in that particular case. Given the crucial role that forensic evidence plays in criminal justice administration, lack of adequate scrutiny of forensic reports would adversely affect the right to fair trial of both victims and accused, alike.182 c. Issues of arbitrariness while exempting specifi c Government Scientifi c Experts from Oral Deposition Like s.293 CrPC, the exemption from deposing before courts is applicable to specifi c government scientifi c experts mentioned in Cl.329(4). This creates an artifi cial distinction between forensic examiners practising the same forensic discipline, with those holding specifi c designations being exempted from testifying before the court. Such an exemption lacks a determining principle and appears to be manifestly arbitrary.183 Further, the exempted category of government scientifi c experts as notifi ed by the state governments, may vary across states. Cl.329(2) also does not provide any parameters to guide the court’s discretion on when they may summon experts as witnesses which can lead to arbitrariness. 183 Shayara Bano v. Union of India (2017) 9 SCC 1 [101]. 182 Anokhilal v. State of Madhya Pradesh, Criminal Reference No. 6 of 2022, Madhya Pradesh High Court, Order dated 11.09.2023 [13]-[14], <https://mphc.gov.in/upload/jabalpur/MPHCJB/2022/CRRFC/6/CRRFC_6_2022_FinalOrder_11- Sep-2023.pdf>, last accessed on 19.10.2023; Naveen @ Ajay v. State of Madhya Pradesh, Criminal Appeals No. 489-490 of 2019, Supreme Court, judgment dated 19.10.2023 [18]-[21], <https://scourtapp.nic.in/supremecourt/2019/2764/2764_2019_4_1501_47778_Judgement_19- Oct-2023.pdf>, last accessed on 20.10.2023. 181 Rajkishorsingh Ranvirsing Tomar v. State of Maharashtra 2021 SCC Online Bom 326 [2]-[4], [10]: the Bombay High Court held that it is incumbent on the prosecution to examine the expert when the court is moved by the accused for issuing summon to expert or when the court itself deems it just and proper to summon the expert; Nana Ram & Anr. v. State 1996 SCC Online Raj 692 [2]-[4]; discussion on Cl.330 below.