Before venturing in the fascinating and intriguing world of Medical Science and DNA testing let us try to seek the link between evidence and forensic science.
Definition of Evidence:Strictly in legal context, evidence can be defined as various things presented in court for the purpose of proving or disproving a question under inquiry. It includes testimony, documents, photographs, maps and video tapes. These are termed as evidence of the case.
Trial evidence consists of:
1. The sworn testimony of witnesses, on both direct and cross-examination, regardless of who called the witness.
2. The exhibits which have been received into evidence.
3. Any facts to which all the lawyers have agreed or stipulated.
Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence.
Cultivating this definition further brings us to the door step of the “Laws of Evidence" ,which significantly is not a branch but altogether a different segment of legal system. So we can conclude that the term 'Laws of Evidence' as a body of law. The subject-matter of that body of law, however, is not properly defined. It is a critical task to define as it determines the rules of law to be reviewed and critically examined and the scope of any proposals.
Attempts at Definition:The Law of Evidence can be defined as
Those rules which directly or indirectly:
1. Control what evidence may be received;
2. Control the manner in which evidence is presented and received;
3. Control how evidence is to be handled and considered once it is received and what conclusions, if any, are to be drawn from particular classes of evidence;
4. Specify the degree of satisfaction that the tribunal of fact must attain in determining whether a fact in issue is established and the consequences if such a level of satisfaction is not reached.
This is the approach of several writers. It has been found, however, that this formulation is unsatisfactory as it includes both substantive and procedural rules. While the definition of the 'laws of evidence' has been considered by the courts, they have not attempted an exhaustive definition.
After attempts to define law of evidence lets define forensic evidence and the way it can be related with law of evidence.
Definition of forensic science:Forensic science is the use of science in the service of the law. Sciences used in forensics include any discipline that can aid in the collection, preservation and analysis of evidence such as chemistry (for the identification of explosives), engineering (for examination of structural design) or biology (for DNA identification or matching).A forensic scientist is expert in any technical field and can provide an analysis of the evidence, witness testimony on examination results, technical support and even training in his or her specialized area.
Analysis of forensic evidence is used in the investigation and prosecution of civil and criminal proceedings. Often, it can help to establish the guilt or innocence of possible suspects. Forensic evidence is also used to link crimes that are thought to be related to one another. For example, DNA evidence can link one offender to several different crimes or crime scenes (or exonerate the accuse d).Linking crimes help law enforcement authorities to narrow the range of possible suspects and to establish patterns of for crimes, which are useful in identifying and prosecuting suspects. Forensic scientists also work on developing new techniques and procedures for the collection and analysis of evidence. In this manner, new technology can be used and refined not only to keep forensic scientist on the cutting edge of science, but to maintain the highest standards of quality and accuracy.
Forensic analysis is usually carried out by experts working individually or in teams. Advanced techniques often require laboratories where the investigative conditions can be carefully controlled and monitored. Private laboratories and government agencies support small and large forensic labs. Analysis of forensic evidence is used in the investigation and prosecution of civil and criminal proceedings. Often, it can help to establish the guilt or innocence of possible suspects. Forensic evidence is also used to link crimes that are thought to be related to one another. For example, DNA evidence can link one offender to several different crimes or crime scenes (or exonerate the accused). Linking crimes helps law enforcement authorities to narrow the range of possible suspects and to establish patterns of for crimes, which are useful in identifying and prosecuting suspects.
Forensic scientists also work on developing new techniques and procedures for the collection and analysis of evidence. In this manner, new technology can be used and refined not only to keep forensic scientist on the cutting edge of science, but to maintain the highest standards of quality and accuracy. The in depth analysis of forensic evidence brings us to the main course of our topic. The different types of methods that can be used in forensic science and their acceptability in the legal system. Thus for better understanding we take in to per view a commonly applied method of forensic evidence:
DNA Testing:Definition of DNA Testing:
DNA is an abbreviation of Deoxyribo Nucleic Acid. It is an organic substance, which is found in every living cell and gives an individual a personal genetic blue print. It can be extracted from a whole variety of different materials like,. Blood, saliva, semen, hair, urine, body fluids, bones, body organs etc. DNA was discovered in 1869 by a Swiss scientist Frederick Micscher. Sir Alec. J. Jeffereys discovered the use of DNA for forensic analysis in 1984.It was first used in England by the police in the famous Enderby case involving two girls who had been raped and murdered.
DNA tests are highly effective because every person’s DNA is unique except identical twins. The greatest asset of DNA is that it is so specific to every individual that it cannot be tampered. DNA tests can be used to establish parentage of a child, detect crimes, and identify mutilated dead corpses. They are of immense help in criminal justice administration and in some civil disputes like succession, inheritance etc.
DNA testing has become an established part of criminal justice procedure, and the admissibility of the test results in court has become routine. Although DNA testing has accomplished a great deal in opening up new sources of forensic evidence, its full potential to identify perpetrators and exonerate people falsely convicted has yet to be realized. For this to be done requires further advances in testing technology and in systems to collect and process the evidence. These advances are now under way.
The development of forensic DNA testing has expanded the types of useful biological evidence. In addition to semen and blood, such substances as saliva, teeth, and bones can be sources of DNA. These sources are expanding still further, as researchers explore the potential of other biological substances, such as hair, skin cells, and fingerprints.
Even though the sources are multiplying, the use of DNA evidence is currently limited because much of what could be tested remains unrecovered and unanalyzed. The numbers are increasing, but of all sexual assault convictions for which DNA collection is legislatively mandated, samples were obtained from less than half of the individuals, and of the cumulative number of DNA samples obtained, only 20 percent have been processed.
The reasons for the lag in evidence recovery and processing are scarcity of law enforcement resources, lab backlogs caused by insufficient funding, and time-consuming and costly testing methods. Given the deadlines imposed by the courts, it is not possible to analyze all the potential evidentiary specimens submitted.
More rapid processing of DNA evidence should make it possible to overcome these obstacles within the next few years as a result of improvements in technology. The turn around time of RFLP (Restriction Fragment Length Polymorphism) Analysis has recently been reduced. More promising is the anticipated replacement of RFLP by PCR (Polymerase Chain Reaction) based technology, which takes only days to perform. Initial collection of evidence is improving as a result of the establishment in many jurisdictions of more structured crime-scene teams and more formalized evidence collection procedures. In the past few years alone, major technological advances have been made in fingerprinting, the development of computerized fingerprint databases and are perhaps most familiar because of recent sensational criminal cases related to DNA testing.
The Indian Scenario:
Let us first cultivate the legal aspect of forensic and medical evidence in the India. As per Section 45 of Indian evidence Act 1872- When the Court has to form and opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.
Further as per Section 46 of Indian evidence Act 1872- it is stated that facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
Thus the ingredients of section 45 and section 46 are highlights that:
1) The court when necessary will place its faith on skills of persons who have technical knowledge of the facts concerned.
2) The court will rely the bona fide statement of proof given by the expert concluded on the basis of scientific techniques.
3) The evidence considered irrelevant would be given relevance in eyes of law if they are consistent with the opinion of experts.
Thus we see that expert evidence helps the courts to draw logical conclusions from the facts presented by experts, which are based on their opinions derived by their specialized skills acquired by study and experience. Hence, experts are routinely involved in the administration of justice particularly in criminal courts.
Highlighting the situation in the most commonly sought after experts:
The Medical Experts:In India, we have adversarial system of justice administration and ordinarily medical evidence is admitted only when the expert gives an oral evidence under oath in the courts of law expect under special circumstances like:
a) When evidence has already been admitted in a lower court;
b) Expert opinions expressed in a treatise;
c) Evidence given in a previous judicial proceeding;
d) Expert can not be called as witness;
e) Hospital records like admission/discharge register, birth/death certificates etc.
In, India, it is a common perception that lot of time and effort is required to record evidence and therefore by enlarge members of the medical profession does not like to involve in medico legal cases. Some of the possible reasons put forward for this perception are:
a) Undue time consumption;
b) Repeated adjournments;
c) Lack of work culture in the courts
Hardly, any scientific data is available to support or refute this perception in relation to medical evidence. Therefore, it was planned to undertake a pilot study to analyze the quantum of time and effort put in by medical experts to get the evidence recorded in criminal courts and other issues related to it.
DNA technology in Indian legal scenario:Let’s discuss the topic of application of DNA testing in India:
Determination of parentage:
Indian courts have time and again held that the evidence for proving non-access must be strong, distinct, satisfactory and conclusive. DNA tests can be strong evidence as they are correct up to 99% if positive and 100% if negative.
Related case laws:
* Vasu vs Santha 1975 (Kerala)
* Gautam Kundu vs State of West Bengal.
In the above cases the court has laid down certain guidelines regarding DNA tests and their admissibility to prove parentage.
(1) That courts in India cannot order blood test as a matter of course;
(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
Further the court said Blood-grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence, which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal.
Crime detection and DNA technology:Though there is no specific DNA legislation enacted in India, Sec.53 and Sec. 54 of the Criminal Procedure Code, 1973 provides for DNA tests impliedly and they are extensively used in determining complex criminal problems.
Sec. 53 deals with examination of the accused by medical practitioner at the request of police officer if there are reasonable grounds to believe that an examination of his person will afford evidence as to the commission of the offence.
Sec. 54 of the Criminal Procedure Code, 1973 further provides for the examination of the arrested person by the registered medical practitioner at the request of the arrested person. The law commission of India in its 37th report stated that to facilitate effective investigation, provision has been made authorizing an examination of arrested person by a medical practitioner, if from the nature of the alleged offence or the circumstances under which it is alleged to have been committed, there are reasonable grounds for believing that an examination of the person will afford evidence.
Sec. 27(1) of Prevention of Terrorism Act, 2002 says when a investigating officer request the court of CJM or the court of CMM in writing for obtaining sample of hand writing, finger prints, foot prints, photographs, blood, saliva, semen, hair, voice of any accused person, reasonable suspect to be involved in the commission of an offence under this act. It shall be lawful for the court of CJM or the court of CMM to direct that such samples shall be given by the accused person to the police officer either through a medical practitioner or otherwise as the case may be.
There is a unanimity that medical and forensic evidence plays a crucial role in helping the courts of law to arrive at logical conclusions. Therefore, the expert medical professionals should be encouraged to undertake medico legal work and simultaneously the atmosphere in courts should be congenial to the medical witness. This attains utmost importance looking at the outcome of the case, since if good experts avoid court attendance, less objective professional will fill the gap, ultimately affecting the justice. The need to involve more and more professionals in expert testimony has been felt by different organizations. The American College of physician's guidelines for the physician expert witness emphasizes on broad physician participation in providing this much-needed assistance to the legal system. The college believes that more doctors should serve as experts as a component of their professional activities in order to meet the need for medical testimony.
This objective of greater expert participation can only be achieved by addressing to the apprehensions that ponder the mind of medical professionals. In the light of new developments in the forensic science, the home ministry, Govt. of India constituted a committee under the chairmanship of Dr. Justice V.S Malimath to suggest reforms in the criminal justice system. This committee suggested comprehensive use of forensic science in crime investigation. According to the committee DNA experts should be included in the list of experts given in section 293(4) of Cr.P.C, 1973.
Suggestions provided by the Malimath committee report, submitted that:1. Sec. 313 of the CR.P.C must also be amended so as to draw adverse inference against the accused if he fails to answer any relevant material against him therefore, making it easy for the law enforcers to use DNA tests against him.
2. A specific law should be enacted giving guidelines to the police setting uniform standards for obtaining genetic information and creating adequate safeguards to prevent misuse of the same.
3. A national DNA database should be created which will be immensely helpful in the fight against terrorism.
4. More well-equipped laboratories should be established to handle DNA samples and evidence.
5. Efforts should be taken to create more awareness among general public, Prosecutors, judges and police machinery.
Different aspects of the justice administration can be further improved by the following measures:
a. Discouraging routine summoning of doctors;
b. Calling expert witness at pre-scheduled time;
c. Recording experts' testimony by alternative judicial officer in case of non-availability of the presiding officer the court that summoned him.
d. Amending provision of criminal procedures to have admissibility of the medical records;
e. Recording of experts' testimony through video-conferencing.
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