(This is a guest post by Bharat Harne)
Expert testimony has come to play an essential role in criminal trials. With the rapid advance in science, courts in India (and across the world) have increasingly started relying on scientific proof and analysis for fact-finding. Since an avowed purpose of a criminal trial is fact-accuracy, scientific evidence is seen as a reliable way to get to the truth of the matter. The opinion of an expert is not binding but is material that helps a court to come to a conclusion about facts that it could not have ascertained on its own. Unlike predominant literature on expert testimony in the Indian context which mostly focuses on its probative value, this post looks at procedural issues surrounding expert testimony. First, I make a distinction between two different kinds of experts i.e., medical experts and non-medical experts who play a role in the criminal justice process. Then, I focus on non-medical experts and evaluate whether the relevant legal provisions ensure fair trial of the accused.
Types of Experts
For the purpose of this post, experts can be divided into two types, viz. medical experts and non-medical experts. The terms medical experts will be used to refer to doctors (both government doctors and private practitioners) who prepare reports like a post-mortem report, MLC report etc.
Medical experts are usually called as prosecution witnesses. Usually, in a criminal investigation, medical experts prepare ‘reports’ which are then used for further investigation and are admitted as ‘documentary evidence’ in a criminal trial. For example, in murder cases, the doctor who does the post-mortem prepares a post-mortem certificate which becomes extremely important in the trial to establish the cause of death. Such medical expert prepares a report which contains information about injury (if any) and can be useful to prove the cause of death, nature of injuries, etc. When the prosecution calls an expert on the stand, they are supposed to prove the contents of their reports because these reports are private documents under the provisions of Indian Evidence Act, 1872. The defense is entitled to cross-examine the expert as to the contents of their report.
The term non-medical experts will refer to various other kinds of experts who play a crucial role in an investigation, such as ballistics expert, serologist, chemical examiner, handwriting expert, fingerprint expert, etc. The justification of this distinction is that the procedural law in India itself treats these experts differently. While, on the one hand, prosecution calls medical experts to prove their opinions/reports, the CrPC exempts the prosecution from calling non-medical experts.
Section 293 and Non-Medical Experts
S.293 of the Criminal Procedure Code 1973 states that any document purporting to be a report under the hand of a Government scientific expert to whom the section applies may be used as evidence in any inquiry, trial, or other proceedings. In other words, this provision creates an exception to the rule that the contents of a document must be proved. As per s.293(4), the exception only applies to reports prepared under the hand of the following Government scientific experts- any Chemical Examiner or Assistant Chemical Examiner to Government; Chief Controller of Explosives; Director of Finger Print Bureau, Director of Haffkeine Institute Bombay; Director, Deputy Director or Assistant Director of Central Forensic Science Laboratory or a State Forensic Science Laboratory; Serologist to the Government or any such expert notified by the Central Government. To date, the Central Government has not exercised its power to notify any other expert who would be exempt from appearing before a trial court.
The 41st Report of the Law Commission of India sheds light on the rationale of this exception. It notes that s. 509 of the erstwhile 1898 Code exempted a civil surgeon or other medical witnesses from appearing in a Court of Session if the witness has given evidence in the committing court and his recorded statement is made a part of the evidence by a special rule. The Commission had received a suggestion that even the requirement of appearance before committing court should be done away with, and the report itself should be treated as evidence. However, the Commission observed that such a rule would not be helpful as there is a serious risk of experts becoming ‘irresponsible’ and a trial court, in most cases, would end up summoning the medical expert anyway. Further, Section 510 of the old Code was similar to Section 293 of the CrPC 1973. It exempted certain government experts from proving their reports. The Commission noted that the provision is meant to exempt those experts who, because of their ‘small number’ require ‘special treatment.’ Thus, the primary reason why certain experts are exempted is that they are very few in number, and it would be simply impossible to call them in each and every case.
It is interesting that the Commission did not consider a possibility that ‘special’ experts might not give reliable evidence. Contrast this with how the Commission rejected giving the same exemption to medical experts. The only reasonable explanation for this differential treatment seems to be that medical experts (usually Government doctors) were more in number than experts who were given the exemption. Moreover, literature on scientific evidence suggests that when forensic labs work under the umbrella of law enforcement/government, the experts in the lab begin to see themselves as law enforcement professionals rather than scientists. Cognitive scientists argue that a close working relationship with law enforcement agencies leads to the subconscious adoption of the role of the prosecutor by scientists. This bias can affect the results of scientific inquiry, which are presented as neutral but, in fact, are biased against the defense. The risk is not of gross misconduct, rather that of subtle unconscious bias. CrPC gives exemption to precisely the agencies (such as Central and State Forensic Science Laboratories) who work very closely with prosecution/law enforcement and are therefore susceptible to bias. This phenomenon has been described in vivid detail for the Indian context by Prof. Lokaneeta in The Truth Machines recently.
An example of such bias was seen in reports of the SBI Laboratory in North Carolina in the United States. After a conviction was overturned after fourteen years because of a dubious report by scientists in SBI Crime Lab, an audit of procedures and standards followed in the lab was ordered. This audit led to startling revelations about the practices in the lab that favored the prosecution. The audit highlighted the fact that for a period of sixteen years, it was the practice of the lab to either withhold or misrepresent information that might benefit the defense in criminal charges. There is no empirical evidence to suggest that Forensic Laboratories in India follow similar pro-prosecution protocols. However, neither scholars nor policymakers have really explored this question, and therefore just because there is no evidence to suggest pro-prosecution bias, it cannot be said that it does not exist.
Procedural safeguards against bias in Scientific Evidence
It is in this context of bias in forensic evidence that the criminal procedure becomes extremely important. If a forensic scientist is called and put on the stand to prove his report, he will be subject to cross-examination by the defense counsel. It has been argued that questioning an expert about his report is likely to bring out biases within such reports. Of course, it is true that such questioning requires a high level of expertise on the part of defense lawyers and judges. But the fact remains that cross-examination provides the basic minimum safeguard against bias in expert evidence.
Section 293(2) of CrPC states that the court ‘may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report’. This essentially means that it is up to the discretion of the court to summon the expert. However, the defense can also file an application under s. 293(2) to summon the expert for cross-examination. If the defense does not summon the expert for cross-examination during trial, then it cannot be argued at the appellate level that the expert was not examined. In other words, the burden shifts on the defense to file an application before the trial court to summon the expert. While it may seem that, this works as a safeguard, it would be wrong, in my opinion, to assume that litigants are actually using this safeguard. It is difficult to empirically determine how many applications under s.293(2) are filed and how many of them are allowed. However, there is some evidence to suggest that cross examination under s.293(2) is not as common as one might assume. In Abid Beig v. State of Rajasthan, the Rajasthan HC was dealing with a Narcotics Drugs and Psychotropic Substances Act (NDPS) case wherein the accused had not been given an opportunity to cross-examine the report prepared by scientists of the Forensic Science Laboratory (FSL). The court observed that although the reports of FSL are relevant and admissible by virtue of exception under s. 293, it does not mean that the accused should be denied the right to cross-examine the expert. However, more importantly, the court observed that in ‘large number’ of cases at trial court level, the prosecution reports of FSL are pointed out to the accused only at the time of recording of this statement under s. 313 of CrPC. In other words, after the conclusion examination in chief, so that the defense does not get an opportunity to cross-examine. Further, this issue should be seen in the light of the rationale for exception under s. 293, namely, the ‘small’ number of experts. It is no secret that even now, FSLs are grossly understaffed and the Forensic scientists are overworked. Therefore, going to a court to testify is a hassle and it is possible that the scientists might ask the prosecution to make sure that they are not summoned. Worryingly, the Supreme Court itself Thana Singh v. Central Bureau of Narcotics noted that since a large number cases under NDPS are pending, trial courts should take the ‘benefit’ of Section 293, thereby implying that cross-examination of experts can be dispensed with for ensuring speedy trial. While it is not my contention that speedy trial is not important, it cannot come at the cost of the right to cross-examine.
It is interesting to contrast India’s position with the United States (US). The Sixth Amendment to the US Constitution gives the right to an accused to be confronted by the witness against him in a criminal trial (what is referred to as the ‘Confrontation’ clause). In Luis E. Melendez-Diaz v. Massachusetts, a case before the US Supreme Court (USSC), the petitioner was alleged to have been trading in cocaine. Some samples were taken and sent to a laboratory for testing. A report was prepared, which confirmed that the samples were, in fact, cocaine. In the trial, the said report was taken as evidence without giving an opportunity to cross-examine the author of the report. The USSC held this to be a violation of the accused’s Sixth Amendment right. More importantly, it acknowledged that forensic reports are not ‘neutral’ as it is widely believed and acknowledged that people working in these labs are often pro-prosecution because of close working relationships with law enforcement.
Way Forward
First of all, the policymakers should rethink the exception provided under section 293. The exception was provided in the Code because these experts were very ‘few’ in number and not because their expertise was not subject to errors/bias. However, doing away with the exception might further burden the already overworked Forensic labs in India. The unfortunate fact is that even now, forensic labs in India are disproportionately low and grossly understaffed. Recently, the Karnataka High Court highlighted the fact that a lot of cases are pending because of delays occurring in Forensic Science Laboratories. This tells us that the exception under section 293, which was supposed to expedite cases, is not working, and policymakers should instead focus on increasing Forensic Laboratories and hiring more experts. Therefore, to save the time of forensic experts, along with increasing Forensic Science infrastructure, policymakers should also focus on video conferencing of expert testimony. A recent study by PGIMER Hospital found that their doctors had saved nearly 30,000 working hours and around Rs. 2.79 crore in the last four years by using a tele-evidence facility. This facility was touted as the first such facility in what was supposed to be a nationwide program undertaken by the Ministry of Health and Family Welfare to install tele-evidence facilities across hospitals and courts in the whole country. However, so far, there has been no update on the status of the implementation of this program.
Conclusion
Expert testimony plays a crucial role in the endeavour of criminal trials to get to the truth. Advances in medical science in general and forensic science have allowed scientists to answer complicated questions which could not have been answered before. The Indian legal framework adopts a slightly paradoxical approach to the summoning of expert witnesses. Under the Indian Evidence Act the prosecution is obligated to prove the reports of medical experts by getting them to testify before the court orally. While medical experts are obligated to prove the contents of their reports, some ‘special’ experts under the CrPC are exempt from having to come physically to court and take the stand. This exemption is premised not on the scientific objectivity of their expertise but practical problems which the legislature imagined such experts could face in having to travel to court. However, the fact remains that forensic science is not ‘neutral’ and is given to bias, and in failing to consider this issue I argue that the legislature committed a misstep. The practical concerns germane to 1973 can be addressed with relative ease in 2021, using videoconferencing for example. Given the importance of these witnesses to trials and the fact that, ultimately, it’s a matter of personal liberty, the default procedure must be that they appear and testify and are subject to cross-examination – not the present elective approach which places defendants under an onerous burden.
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