Forensic Expert Evidence

Forensic Expert Evidence

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