(This is a guest post by Shailja Rawal)
'What defines us is not how we make mistakes rather how we correct them’
-Rachel Wolchin
The above mentioned proverb by Rachel Wolchin stands true even in the context of improper admission or rejection of evidences by court of law. To err is human and there is nothing one can do to change [the past]; so one should better get used to it and figure out how one’s going to fix it. The question which should ideally arise in such cases involving improper admission or rejection of evidences should not be about why any such error was committed in the first place rather after it being committed; the question can be framed on the lines of approach which needs to be followed for rectification of the same. For example: Should there be a guaranteed fresh trial for every case, provided that there has been an erroneous admission or rejection of a particular piece of evidence at the trial level?
I seek to deal with this question by demonstrating the functionality of a pendulum. Prima Facie, the discussion advanced in order to answer the said question may seem simplistic yet the entire status of law of evidence, as well as the efficiency of our methods of doing justice, is dependent upon this answer. Moreover, it not only helps us realise the varied facets of justice, in which truth does not necessarily achieve an overarching thrust, but also uncovers the debate between consequentialism and non-consequentialism. Non consequentialists believe that certain kind of acts are wrong in themselves and argue that morally unacceptable means cannot justify even a sound end; whereas consequentialists assert that the rightness or wrongness of an action should be judged by its plausible impact.
Philosophers like Weber also link the existing debate between consequentialism and non-consequentialism to an action having an intrinsic or an instrumental value i.e. Whether the law of evidence should be considered as a mere means to an end or it should be seen as an end in itself-an end which sometimes get so independent of justice, that it must be attained even by making a trade off to justice? Both the schools represent two distinct models to deal with such improprieties. Through this paper, I argue that sole application of either of these models do not help us realise the true meaning of justice rather a ‘hybrid model’ should be adopted so that instead of working on either of the extremities of a pendulum, an equilibrium within the same can be restored.
Before we begin, though, some caveats. This paper relies heavily on U.S. cases and the engagement with these issues in that jurisdiction, and where I turn to India it is in the context of the Indian Evidence Act and not other statutes such as the Criminal Procedure Code where doctrines of automatic reversal and harmless error will also be of great importance.
Doctrine of Automatic Reversal
As propounded by the non-consequentialists, this doctrine is based upon the presumption that certain rights attach an intrinsic value to themselves and their violation should per se constitute a ground for reversal. It was also known as the ‘exchequer rule’ which presumed that rights are "too fundamental and absolute to allow courts to exercise discretion and calculate its prejudicial effect."
Their aim is to take rights seriously and requires conviction to be reversed, but the next time by restoring the defendant’s rights. Admittedly, the process becomes more predictable and reduces discretion because it considers every error as being presumptively prejudicial. They don’t believe in quantification since according to them value placed for a right is ‘grounded in’ on certain non-evaluative features. Unfortunately, excessive usage of this, led to the adoption of a highly pedantic approach owing to which automatic reversal of even minor and negligible errors became the new norm.
Gradually cases started getting appealed for maddeningly technical errors. For example in Williams v. State the conviction was reversed because the judge missed the word ‘dignity’ in the phrase ‘against the peace of the state’. Similarly in Gragg v. State a person accused for murder got his conviction reversed because the judgement merely stated that Gragg had 'drowned' his wife and failed to mention the ‘means’ by which such drowning was accomplished. This approach got even worse when omission of mere prepositions started becoming grounds for reversal. It started getting known as an ‘impregnable citadel of technicality’ which in the pursuit of ‘right’ outcome ended up putting efficiency, finality and public confidence in a vulnerable position.
Lack of efficiency could be witnessed due to a significant loss in terms of costs, time and efforts while dealing with automatic reversal cases. An inherent value is attached to finality since it lends credibility to the entire system and keeps it functional. Even today, irrespective of the good or the bad, the judge’s word is still considered final. However, automatic reversal cases led to unending proceedings which on one hand frustrated the efforts of the litigants and on the other hand increased the judiciary’s burden due to a prolonged list of cases pertaining to reversal.
Some scholars critique it as being an obsession with the appearance of justice at the cost of justice itself. This also makes one question if the sole aim of justice is restricted to reaching to the ‘right’ outcome. Additionally, this approach also produced lamentable results by causing delays, increasing expenses and encouraging litigation-gambling. The losing party often began to hide behind the shield of technical errors and got cases delayed indefinitely. Unfortunately, adjudication transformed from ‘who is right’ to ‘who can endure the longest’. Observing this, Justice Freeman contended that the problem now is not about the slight possibility of punishing an innocent; rather the real struggle lies in convicting the guilty.
Doctrine of Harmless error
The proverb to err is human recognises the possibility of error being committed even by a court of law and this gives the indication that even trials are imperfect. The section [167] states that, such error, per se should not lead to reversal of judgement until it changes the verdict after exclusion of such improperly admitted/rejected evidence. It requires the judge to determine if the error was prejudicial or harmless in nature. Consequentialists would argue in support of this doctrine as the judge in these cases is required to assess the impact of error on decision and if there is no such consequence then according to them the second trial would be merely wasteful and redundant.
Moreover, it is often said that "a defendant is entitled to a fair trial and not a perfect one" and this approach becomes even more important when imperfections do not affect the substantial merits of the case rather, to seek reversal, they are intentionally introduced by the officials themselves. Automatic reversal in these cases imposes extraordinary financial and social costs.
Its applicability in the Indian context can be seen under Section 167 of the Indian Evidence Act 1872 which talks about improper admission or rejection of evidences and how they do not warrant an automatic reversal in every case. It will be too soon if it is concluded that doctrine of harmless error should be the ultimate solution because even this approach has its own limitations. While categorising an error as prejudicial or trivial, judges often resort to counterfactual speculations. These decisions are likely to be coloured by existing biases with no available solutions. Section 167 also witnesses the problem of bias in improper admission or rejection of evidences.
The phraseology of the section requires the judges to evaluate the case "independently of the evidence objected to and admitted", but practically speaking is it even possible? There exists a psychological problem with deliberately disregarding those improperly admitted evidences which the judge has already been exposed to. Several theories point out that, instructions to ignore materials may increase the desire to attend to it. Ironic process theory states that generally more time is spent in thinking of how to not think about a particular fact.
There also exists a possibility that the earlier misinformation may lead to a ‘mental contamination’ that remains even after knowing that earlier information was false. This was observed in the case of Daya Shankar and Anr. v. Deputy director of Consolidation and Anr where discretion exercised during improper rejection was held to be in fact vast in nature. This can be seen from the very wordings of the section, ‘It ought not to have varied the decision’ which uses future tense and gives the judges enough discretion to justify that the hypothetical evidence even if admitted might not have made a substantial difference.
For example, Gopalnarain Mozoomdar and Anr v. Muddomutty and Anr was a case about fraudulent transfer of property. Although, an entry in the books of accounts was improperly rejected yet judges conjectured that since it was made by the defendant’s brother in law it would not have made any difference. Ideally, each evidence is required to go through all the given doors of relevancy, admissibility and sufficiency however improper rejection of evidence proscribes it from following this entire process of judicial appreciation. Graver injustice is done towards that party who offered it in the first place having a legitimate expectation that it will have some bearing in the case and thus might not have advanced any other proof in lieu of the same. Since all these facts are together arranged in the form of a web, absence of even one of them could lead towards a gap in the entire factual matrix.
Additionally, it also poses a threat to the defendants. Each verdict of harmlessness effectively curtails the rights of the accused. Justice Stevens argued that a completely ‘harmless’ error is an exceptional situation and if this is taken to be true then it affects the burden of persuasion issue, i.e. it shifts the burden of proof on the accused to show how the error might have posed an opportunity of prejudice. Moreover, increased usage of harmless error rule lessens the incentive of the police to follow proper procedures and also encourages the prosecution side to meddle with defendant’s rights.
Has the pendulum swung too extreme?
The rules governing reversal of judgements on the basis of improper admission or rejection of evidences can be seen to resemble the functioning of a pendulum. The pendulum has swung from one extreme of overemphasising the intrinsic and inherent values of a right leading towards automatic reversal in almost all cases; to the other extreme of merely evaluating its consequence and thereby justifying the violation of even fundamental rights. The current approach demonstrable in the United States, of declaring almost every error as harmless, was meant to be a solution to the automatic reversal doctrine however currently this has become a problem in itself by reflecting poorly on the values placed on individual rights.
Neither consequentialism and non consequentialism is per se wrong because justice as a concept cannot be viewed in isolation. Rather there is no objective definition of justice and it changes from time to time. Its meaning is contingent upon different people and the circumstances surrounding them. Therefore, solely achieving perfection at the cost of efficiency and fairness or vice versa does not explain justice to its fullest extent.
When analysed in totality, these problems do not avail of a one-size-fits-all solution. In the first extreme a legal system without any allowance for harmless error would be paralysed due to retrial of every case even if involving trivial errors Similarly, on the other extreme end, indiscriminate application of harmless error rule offers a mere lip service towards the acknowledgement of procedural rights. Just like many other jurisdictions, an objective definition of ‘justice’ does not exist in India also however depending on the facts and circumstances a hybrid mixture of both these models could be applied.
Hybrid Model: A Viable Solution
Instead of presumably adopting any one extreme model to the exclusion of other, a plausible middle ground could be found out by adopting a hybrid model. Preferred approach towards this can be adoption of automatic reversal in cases of violation of fundamental rights; and usage of harmless error in other cases where fundamental rights do not get affected.
The reason behind this is that such rights are considered to be intrinsically valuable not just as means but also as ends. Thus, their violation can justify automatic reversal unlike some other legal rights for which their plausible ‘impact’ or consequence can be ascertained by weighing of scales. Factors which could be used in this regard are effect of improprieties on accused, degree of seriousness, importance of the evidence etc.
Thus, the hybrid model maintains a healthy balance between both extremes instead of and makes reversal possible if either the fundamental right is violated or the prejudice caused by error exceeds the probative value of interests served by the infringement of any other procedural rule. An illustration to this can include violation of the Right to Privacy which is protected under Article 21 post Puttuswamy.
Through this model, material obtained via illegal telephone tapping, eavesdropping, overhearing any conversation containing incriminating remarks etc can be said to have been obtained illegally or improperly, thereby, making reversal possible instead of relying upon them for ascertaining their impact and then following the established precedents.
Although, this riddle pertaining to harmless error still remains unsolved yet this paper has attempted to make an educated guess rather than surmising an answer on any of the extremes.
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