Forensic Evidence And Wrongful Convictions

KEY TAKEAWAYS 

• The medical opinion, being only an opinion, is advisory in nature and the court has to form its own opinion considering the material, data and the opinion on the technical aspects rendered by the medical expert.
• The scientific evidence which has been separated from “junk science” required more in-depth analyses of foundational evidence regarding bitemarks, footprints, voice, fingerprints etc. which need more attention than ever in recent times.
• Many prisoners who have been exonerated of their crimes have been found experiencing symptoms of PTSD (Post Traumatic Stress Disorder). The number of people who have been wrongfully convicted and are spending away their time in prison is alarmingly high.

INTRODUCTION 

In Indian law, forensic or scientific evidence manufacturing definition is elusive and it does not stand. Obviously, the pace with which science and technology develop makes it nearly impossible for legislation to capture all aspects of forensic or scientific evidence. Ultimately, courts make decisions about specific cases based on their unique circumstances by acting as filters through which scientific and forensic evidence must pass. In their deliberations in Dharam Deo Yadav v. State of UP, the Indian Supreme Court examined the importance of forensic evidence and said that it is free from infirmities found in other types of evidence. The court also upheld the evidentiary standards for scientific knowledge outlined by Daubert v. Merrell Dow Pharmaceuticals, which require testability, peer review, known error rate and general acceptance within the scientific community. The Supreme Court has since added criteria such as the technique's relationship to established reliable methods, the qualifications of the expert witness testifying based on methodology, non-judicial uses of the method, logical or internal, consistency of the hypothesis with accepted authorities, and presumption of the hypothesis or theory to the aforementioned tests for scientific knowledge. 

Forensic science practitioners and exoneration supporters have struggled to reach an agreement on policy and practice improvement. The forensic science community has struggled to effectively communicate the importance of existing techniques. The criminal justice system has relied on outdated or insufficient information on unjust convictions, perhaps missing opportunities to address prior issues. 

Dr. Morgan, an independent researcher with the help of National Institute of Justice analysed and described the impact of forensic science on wrongful convictions which the National Registry of Exonerations of US described as “false or misleading forensic evidence”. Out of 732 total cases examined, 635 cases had errors related to forensic evidence. In India, there is little to no published report on wrongful convictions by any scholars or commission. Unlike in UK, US and Canada, there is no such registry compiled by academics. The absence of such registry, makes it difficult to track down the number of wrongful convictions, the number of exonerations and the circumstances that prevailed during those situations. 

ROLE IN WRONGFUL CONVICTIONS

It is worth mentioning here that even the tiniest discrepancy in obtaining and examining the forensic evidence from the accused, can rewrite his entire fate. While the procedural laws did not mention the term “forensic evidence”, the Indian Evidence Act, 1872 in section 45, has mentioned about “opinions of experts”. Although under this section, the court can call for experts to examine the forensic evidence such as anything relating to medical, DNA, handwriting, fingerprints etc, their opinion is only advisory and not binding upon the courts. The medical opinion, being only an opinion, is advisory in nature and the court has to form its own opinion considering the material, data and the opinion on the technical aspects rendered by the medical expert. (Madan Gopal vs. Naval Dubey 1992 3 SCC 204) 

Scientific evidence was also incorporated in the Constitution of India under Article 246 read with Seventh Schedule, places agencies and institutions for scientific or technical assistance in the investigation or detection of crime under entry 65(c) of the Union List. 

The Code of Criminal Procedure, 1973 under section 293 enumerates the types of Government Scientific Experts who can give evidence in any inquiry, trial or other proceeding. These experts include chemical examiners, fingerprint examiners, forensic examiners and serologists. The government has the power to notify more specialisations under this section. This law was amended to include recent developments in the area of scientific evidence. The Code of Criminal Procedure Amendment Act, 2005 added an explanation of the word ‘examination’ to include, “examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.” This amendment clarified that a registered medical practitioner can decide the type of scientific tests to be undertaken in a case. As registered medical practitioners are not the only type of scientific experts acceptable in a court of law, uncertainty over the scope of scientific and forensic evidence prevailed. 

The Information Technology Act, 2000 amended the Evidence Act to make electronic evidence admissible in a court of law. Therefore, paving the way for use of forensic and scientific evidence using electronic means. 

All of the above inclusions provide a green light towards the development of our country at par with the scientific means, but not green enough. The experts’ opinions and findings are not conclusive, although they bear a heavier chance and affect the judgement, but the 5% chance that they will only be considered as advisory, minimizes it all. Judicial pronouncements on these subjects show clearly that courts believe that the scientific evidence only assists the jurors. It is also to be noted that the terms ‘scientific’ and ‘forensic’ are used interchangeably in many cases. 

FALLACY OF WRONGED JUSTICE

There is this very well-known saying which forms the bulwark of the justice system, which is, “It is better that ten guilty persons escape than that one innocent suffers.” It was given by Blackstone and it is called Blackstone’s ratio. Speaking for itself, it means that no innocent should be wrongfully punished or convicted. But with the advent of forensic evidence and the misappropriate state of affairs the number of people who are being wrongfully convicted due to fraudulent means of collection of forensic evidence, tampering and mishandling. Among many other investigations, researchers strive to figure out what lies behind many miscarriages of justice. There are six contributing factors to wrongful convictions that have been categorized by the National Registry of Exonerations: false a-eyewitness-identification, false-confessions, perjury/false-accusations, false-forensic-evidence, official misconduct and ineffectual legal representation. DNA innocence cases often reveal different, and sometimes opposite, causes of the wrongful convictions when compared to cases that did not use DNA as evidence. This depends on both the types of the situations that may be portrayed in movies as well as the types of the crimes that fall under each category. Investigations that possess DNA proof are mostly for homicides, sexual assaults and other very serious crimes. Therefore, instances of innocent people’s DNA can find proving their innocence even more difficult. Hence financial institutions must often pay the bills more precisely in order to steer clear of extortion. The data accumulated from these probes establish what the factors are that may make offenders escape proper trial but also the ones revealed by DNA to be innocent. In DNA exoneration cases, misidentifying eyewitnesses are the leading indicator to wrongful convictions, followed by deceptive or erroneous lab reports, forced confessions, and informants subsequently, which are the most causes for wrongful conviction cases. 

In a very famous cold case of US, David Dowaliby was alleged of committing the murder of his adoptive daughter, from whom was separated by time and space, when his little Jaclyn was only 7. This put 45 years in embrace with imprisonment. Although Cynthia Dowaliby shared the dock with her husband and was charged as a co-defendant, the judge nonetheless pronounced her ‘not guilty’, his directed verdict not finding her criminally culpable despite the similarities in the case evidence against her and the evidence used for her husband. The essential basis of his confession was a witness who participated in detecting the location of Jaclyn's body. At the trial, Everett Mann, who had been diagnosed with bipolar syndrome earlier, testified that he saw Dowaliby when it was completely dark in the parking lot with no moon light from 75 yards. In 1991, the Illinois Court of Appeals denied the conviction of Mr. Hillberg and stated that the evidence was inadequate. In the name of this mistake, the law stopped the defendant’s sentence because the evidence given by him was not more effective than his wife’s evidence for which she was acquitted. A jury holds the defendant guilty though the evidence does not suit the reason. The State was not ready to prosecute him again, and in 1992 he was finally released after spending two years in prison, and only following an appeal denial. Apart from this, He was also helped by the Professor David Protess' journalism class at Northwestern University. 

James Kluppelberg was wrongfully convicted of an arson that killed six people and injured one other on Chicago’s south side in 1984. Gayle Horn of the Exoneration Project and attorney Karl Leonard of Winston and Strawn brought forward new evidence subsequently overturning James’ conviction. During the initial investigation, police determined that the fire was an accident. Four years later, a witness avoided prison time on burglary and theft charges by falsely claiming that he watched Kluppelberg go back and forth to the scene of the fire from an attic window. Nevertheless, an aerial view showed that the view was covered by another structure from the attic window. The witness later admitted that was not the truth, he had lied. Once again, the former Fire Department employee, Francis Burns, said that the papers or rags were ignited and alleged smouldering patterns to prove further that the fire was a fire crime. Thanks to science, it is impossible for Mr. Burns theory to be thermodynamics. Students working with the Exoneration Project, in addition, exposed some other evidence that some other person apart from Mr. Kluppelberg might have started the blaze, this being the evidence that had not been disclosed by the Mr. Kluppelberg at the time.

On May 30, 2012 a Cook County Judge vacated his conviction and his charges were dropped, freeing him from prison after 24 years behind bars.  James is currently living in Indiana and seeking a job in hotel maintenance. 

No amount of compensation can ever suffice for the mental agony he suffered for over 24 years in jail, which is almost half of his life. The incorrect use and examination of forensic evidence during trials is not only a blotch on the adversary of the judicial system, but also shows the incompetency of the lawmakers to come to a certain guideline for atleast the start of correctness. 

The scientific evidence which has been separated from “junk science” required more in-depth analyses of foundational evidence regarding bitemarks, footprints, voice, fingerprints etc. which need more attention than ever in recent times. For instance, of State of Georgia v. Sheila Denton (2020). Denton was found guilty for the murder of Mr. Eugene Garner through bite mark comparison or forensic odontology. Nevertheless, tones after the conviction the scientific perception on bite marks altered as studies emerged that bite marks are not as unique as it was previously thought and identification through forensic odontology has lesser certainty than in the past. These reports were then mentioned in the PCAST report (p. 83-87) and were the groundwork for the revision of the bite mark identification standards of the American Board of the Forensic Odontology (“ABFO”) in 2018. On such a revelation of issues in the reliability of bite mark evidence, the conviction of Sheila Denton was overturned in 2018, and she was finally acquitted in 2020. The approach of bite mark evidence in India, as in Mukesh v. State of NCT Delhi (2017), has been less than satisfactory:

“Forensic Odontology has already become an instrumental and invaluable field of science in medical-legal affairs and evidence of experts by means of various reports which were used by the court as an instrument of justice. In the given case, the report can be considered as perfectly valid because of matching with teeth features of persons accused and there is no reason to suspect the report.”

While Indian Judiciary system does not have a proper framework to test the basis of the expert evidences, it had to develop a logical way to do it. While evaluating expert testimony, the Courts usually look at two things: the credibility of the expert, involvement of the principled conduct of the witness (Ramesh Chandra Agrawal v. Regency Hospitals Ltd, (2009)). In the former test, the Court will look at such factors as whether the expert actually has experience in the particular area of the case. For instance, in the case State of HP v. Jai Lal (1999) the Court ruled that it was not enough that the expert witness was a general horticulturist but said that an expert on a specific issue (assessing apple crops) is a must. The Court's scrutiny in the following test is whether the give decision is principled and supported by the adherence to logically sound judgment or it takes a casual approach. For example, if a handwriting expert is requested to say something about, he identifies their similarities while they’re far from each other (Manu Sharma vs NCT of Delhi, 2007), he should be able to answer accordingly. 

In November 2017, The Human Rights Watch revealed that many medical experts in India were flouting the guidelines set by the government on examining the survivors of sexual assault. The fact that the doctors continue to perform the ‘two-finger test’ despite the government guidelines state the procedure is unscientific and that it must not be used should be a wake-up call. This is where the influx of misinformation begins from where the police take the expert's opinion at the face value. In the case of Dr. (Mrs) Nupur Talwar v. State of U.P. and Others (CA No. 293 of 2014, Allahabad High Court, Oct. 2017). While the High Court of Allahabad rejected the evidence given by the scientific expert presented by the CBI, the court found that the expert had made subjective conclusions in his report, which have no place in forensic examination. Hence, in this case, the High Court pointed out that the medical professionals had ‘medical blasphemy’ by supporting the version of prosecution theory without any scientific proof of the same.

Syed Wasif Haider was detained and prosecuted with numerous accusations including spreading dissatisfaction, rioting and murder and he was suspected to be involved in a terrorist group. However, after the period of eight years he was proved innocent and at the end he was granted bail from every offence in which he was convicted. He no longer faced those struggles behind his prison's gates, his income being not sufficient, he was unable to access the financial freedom he needed outside that jail. 

At one of his interviews, he willingly shared his experiences what he had gone through while he was outside jail treating him like an animal.

“It could appear that I am a free man now though I feel I am in the prison of the same size but with different walls. The loneliness that was haunting me in jail is still ‘living’ within me even after the court has verdicted me to be innocent”

“Today, I have no job, but I can still bring (something) to this world, and perhaps I have a great value too as a human being.” Nobody hires me. People do not want to deal with me, guilty or innocent, this is the social impact I have to endure even after the case is taken care of.

ACCOUNTABILITY AND AVOIDANCE

As mentioned before, there is not enough monetary compensation that can suffice the mental agony that a person goes through when he is in jail. Many prisoners who have been exonerated of their crimes have been found experiencing symptoms of PTSD (Post Traumatic Stress Disorder). The number of people who have been wrongfully convicted and are spending away their time in prison is alarmingly high. An apology sounds hollow when it is not accompanied by changed guidelines and legislations. The courts in India still do not have an elaborate standard for examining and patronizing the standard of forensic evidence. 

The accused should also be given a better chance of resuscitation. One of them would be, better bail review. Section 436A of Criminal Procedure Code amendment of 2005 provides that a person denied bail can re-apply for bail after serving one-half of the maximum sentence prescribed for the offence. This seems to be an acknowledgement of the problem of both delayed trials and wrongful prosecutions. At the same time, the provision does not apply to cases punishable by death. As such, the law excludes the most serious offences where pre-trial detention is more likely and lengthier. In 2021, almost 17% of all undertrials had served two years or more in pre-trial detention (India Prison Statistics). One possible reform to section 436A would be to expand the provision to apply to all offences. Another could be lessening the time period from one half to something more palpable. 

CONCLUSION

The disastrous results of a wrongful conviction is shameful nationwide in which the innocent people, who are being convicted and arrested, see their trust in the judicial system as flawed which then may cause a big public problem. If the accused is genuinely innocent and is wrongfully convicted, that the fact that the real criminal is still out on his freeway and has the potential of doing a more heinous crime comes into play. So, they should be the last resort to consider when a state wants to bring serious charges into litigation after a complete investigation. By all legal means they are exculpated even maybe; however, the social marginalization prejudices, and their long-held traditions nullifies their chances of leading a disconnected life, because humans possess a nature that once crimes attach them irrespective of the consequences or judgement, they become outcasts of the society.

With India being a welfare state, the development of such errors in the manner of wrongful conviction by the state can be considered as a violation of human rights. This is a case of failure of justice at the expense of the inability of the government in providing the relevant framework to the given situation and the lack of remedies provided. Firstly, being acquitted after spending years in jail when you didn’t commit the crime is far beyond the disaster. Secondly, it will leave the victim emotionally disturbed, thus requiring a clear legal procedure that should be very fast to compensate the victim adequately including some rehabilitation programmes and some legal actions to be taken against the responsible officials or authorities. The victim who was rejected into the community experiences several challenges such a social discrimination, not opportunities to earn an income, hence there is a need to put up a system that would help them settle in the community again. 

A miscarriage of justice – guilty verdicts for innocent people – is the most terrible failure of the justice system as the trail of an innocent person’s life and a travesty of justice are left. Probably, it is a very intricate problem, in which identifying the shortcomings of the justice system is particularly important to see. Through the implementation of appropriate approaches to set up the right approaches and compensations and by motivating a few reforms in our current system of justice, the judicial system will be able to deliver the true justice to the public by avoiding the innocent without stomping on them into the loopholes in the legal system.