Friday, February 27, 2015

Post Arrest Silence and Self-Incrimination

An interesting question has been troubling me of late, to discuss which, I'd ask you to recall the posts on entrapment. For those in a hurry, picture this: The police have sent V to the doorstep of D, a drug dealer, asking for some contraband. V has been taped, and the conversation is being recorded by the Police who are sitting in a van 50 yards away. D willingly complies, and the moment he accepts the cash from V a Police Officer rushes out of his van and confronts D, accusing him of having sold contraband drugs to V and grabs his wrists. D appears confused and remains silent, not responding to the accusation. He is subsequently on trial for possession and sale of narcotics. Can the Prosecution rely on D's conduct when he was confronted by the police officer? 

Evidence of Conduct?
Section 8 of the Indian Evidence Act 1872 [IEA] makes relevant "... the conduct of any person an offence against whom is the subject of any proceeding ... if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto [emphasis supplied]".

The 'conduct' here is D appearing confused and remaining silent when the Police accuse him after the trap. Does it influence or is influenced by any fact in issue or relevant fact? Yes, as per the definition of the terms 'fact in issue' and 'relevant fact' under Section 3 of the IEA. So there is little doubt that the conduct in question is made relevant by Section 8, IEA.

Is this Reliable Evidence?
Courts differ in their appreciation evidence which details the conduct of an accused following a confrontation such as the one in our example. On one occasion, the Supreme Court in Prakash Chand v. State [AIR 1979 SC 400] held that the "immediate reaction of the accused on being questioned by PW9 [police officer laying trap] is a circumstance which corroborates the testimony of PW6 [complainant, the bribe-giver]." However, earlier in Sat Paul v. Delhi Administration [(1976) 1 SCC 727], the Court held when discussing the reliability of such conduct, that "its probative value would be almost nil" because "It would not be unusual even for an honest Officer to be frightened out of wits on being suddenly accused of bribe-taking by a superior Officer". On the balance of judgments, however, it appears that the Supreme Court is usually willing to consider the evidence of conduct following a confrontation/questioning at the scene of crime [see, Zwinglee v. State of M.P., AIR 1954 SC 15; Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322; State of Madras v. Vaidyanatha Iyer, AIR 1958 SC 61].

Article 20(3) of the Indian Constitution guarantees a fundamental right that no accused person shall be compelled to be a witness against himself. Would this not squarely apply to any questions D is asked when the Police grab him? At the relevant time, D is literally in police custody for committing an offence, clearly making him an accused [see, Romesh Chandra Mehta v. State of W.B., AIR 1970 SC 940]. D is questioned by the police, i.e. to become a witness against himself. Two out of three boxes are checked.

We are only left with the issue of compulsion. The majority opinion in State of Bombay v. Kathi Kalu Oghad, [AIR 1961 SC 1808] did hold that "The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'." The words 'mere' and 'voluntary' are instructive. They do not envisage the coercive scenario that is custody at the time of a trap. In fact, Krishna Iyer J. in Nandini Satpathy v. P.L. Dani [AIR 1978 SC 1025] took great pains to discuss how harrowing police interrogation can be for an accused. Therefore, it is difficult to conclude that the observations in Kathi Kalu Oghad make such evidence permissible. 

The Supreme Court of the United States in Doyle v. Ohio [426 U.S. 610 (1976)], held that the post-arrest silence of an arrestee could not impeach or impair any subsequent explanation, as that silence was protected under the Fifth Amendment to the U.S. Constitution. The Court concluded thus largely because Doyle had chosen to remain silent after being read his Miranda Rights, a set of judicially mandated warnings issued to every arrestee following the landmark decision in Miranda v. State of Arizona [384 U.S. 436 (1966)]. Therefore, it is difficult to rely on it to support the general proposition that post-arrest conduct upon questioning would contravene the privilege against self-incrimination.

Today, whatever D says and/or does upon being confronted at the time of being apprehended by the police is relevant and admissible. D, therefore, is being made a witness against himself under what seem to be compelling circumstances. 

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