Kanika Aggarwal
ABSTRACT
Forensic evidences are, both, applauded for the efficiency and certainty they lend to judicial decision making, as well as condemned for being incomprehensible and sometimes, leading to wrongful convictions. In the last two decades and more, a shift in scientific paradigm is being observed, especially in relation to the forensic disciplines that rely on pattern comparison- like odontology, hair analysis, tool analysis etc. The credibility of forensic evidences has come under a cloud since cases of wrongful convictions have gained attention globally. The enhanced critical analysis of the manner in which forensic evidence is scrutinised (or not scrutinised) in courts has given rise to the need of sensitizing the scientific and legal communities about the limitations inherent in the forensic sciences.
Though it is well-documented that none of the forensic science disciplines, other than DNA, can scientifically claim individualisation, the lawyers and judges are found to be totally oblivious of this scientific reality. Forensic/Scientific evidences, professed as scientific and objective, can unduly influence the outcome of a case. This makes the judge’s role as gatekeepers when admitting science in the courtroom extremely crucial. After all, it is the call of a judge to decide whether or not, and to what extent, they want to rely on the expert’s opinion. Unlike other evidences, these opinions are demonstrative in nature. It is solely a judge’s responsibility to assess and evaluate forensic evidence. This leads to an interesting intersectionality of legal and scientific standards. Given the different nature of law and science as disciplines, it is a daunting task for judges to effectively evaluate forensic evidences. This task is made more onerous by a number of possible factors – limitation or lack of scientific knowledge in the legal community, partisan bias exhibited by experts, submission of new or dubious science etc.
Project Innocent and various cases of wrongful conviction cases have made it amply clear that disregard for intersectionality of law and science could be a serious threat to accurate judicial decision making. The paper aims to expose the ignorance to such issues in Indian context with the help of judgments from Indian courts. Part I of the article sets out the laws regulating forensic evidence in courts in India, including the one that have been transplanted from other jurisdictions. Part II of the article highlights the epistemic disconnect between law and science. The part III of the articles illustrates the perfunctory manners in which judicial gatekeeping function is being performed by making reference to judicial decisions. The last part of the article is a review of suggestions put forth by various academicians and legal practitioners.
Keywords: Forensic Science, daubert, epistemic disconnect, gatekeeping function, judicial decision making
1. INTRODUCTION
Forensic evidences are, both, applauded for the efficiency and certainty they lend to judicial decision making, as well as condemned for being incomprehensible and sometimes, leading to wrongful convictions. In the last two decades and more, a shift in scientific paradigm is being observed, especially in relation to the forensic disciplines that rely on pattern comparison- like odontology, hair analysis, tool analysis etc.[1] Credibility of forensic evidences has come under a cloud since cases of wrongful convictions have gained attention globally.[2] The enhanced critical analysis of the manner in which forensic evidence is scrutinised (or not scrutinised) in courts has given rise to the need of sensitizing the scientific and legal communities about the limitations inherent in the sciences.
Though it is well-documented that none of the forensic science disciplines, other than DNA and fingerprints, can scientifically claim individualisation, the lawyers and judges are found to be totally oblivious of this scientific reality.[3] Forensic/Scientific evidences, professed as scientific and objective, can unduly influence the outcome of a case. This makes the judge’s role as gatekeepers when admitting science in the courtroom extremely crucial. After all, it is the call of a judge to decide whether or not, and to what extent, they want to rely on the expert’s opinion. Unlike other evidences, these opinions are demonstrative in nature. It is solely a judge’s responsibility to assess and evaluate forensic evidence. This leads to an interesting intersectionality of legal and scientific standards. Given the different nature of law and science as disciplines, it is a daunting task for judges to effectively evaluate forensic evidences. This task is made more onerous by a number of possible factors – limitation or lack of scientific knowledge in the legal community, partisan bias exhibited by experts, submission of new or dubious science etc.
Project Innocent[4] and various cases of wrongful conviction cases have made it amply clear that disregard for intersectionality of law and science could be a serious threat to accurate judicial decision making. The paper aims to expose the ignorance to such issues in Indian context with the help of judgments from Indian courts. Part I of the article sets out the laws regulating forensic evidence in courts in India, including the one that have been transplanted from other jurisdictions. Part II of the article highlights the epistemic disconnect between law and science. The part III of the articles illustrates the perfunctory manners in which judicial gatekeeping function is being performed by making reference to judicial decisions. The last part of the article is a review of suggestions put forth by various academicians and legal practitioners.
1.1. Conceptual/Theoretical Framework
Derived from Latin word forensis, the word FORENSIC’s root refers to the 'forum' i.e. professional, political, or legal gathering.[5] Whereas the definition of the SCIENCE is “knowledge attained through study or practice.”[6] Together the term Forensic Science, therefore, means application of scientific principles and techniques to matters of a legal system especially as relating to the collection, examination as well as analysis of evidence. In other words, forensic science is use of science for the purposes of law. And, the evidences so derived with the help of forensic sciences are called forensic evidences. Forensic Science, in broad terms, can be defined as –
“that scientific discipline which is directed to the recognition, identification, individualisation, and evaluation of physical evidence by the application of the principles and methods of natural sciences for the purpose of administration of criminal justice."[7]
Forensic Science includes a broad range of disciplines; each has its own set of practices and technologies. They all differ in terms of methodology, types, techniques, reliability, and numbers of potential errors, general acceptability, research, published material etc. Some disciplines are laboratory based (e.g., DNA analysis, drug analysis, toxicology); some are based on interpretation by an expert (e.g., fingerprints, bite marks, writing samples, hair analysis, tool marks etc.).[8]
As regards Forensic evidences, the relevance of these evidences is determined by way of Section 45 of the Indian Evidence Act. Forensic evidences fall in the category of “science” experts. The word science is used in a comprehensive manner and shall be construed broadly. The acid test for determining whether a particular subject under the category of science is, “whether the subject matter of enquiry is such that inexperienced men are unlikely to prove capable of forming a correct judgment upon it without the assistance of expert?[9]
Section 45 and 46 of the Indian Evidence Act, together, bring to light certain very crucial elements of the legal system, -
1. Faith and trust that courts place on people with specialised knowledge and skills of the facts concerning the case;
2. Reliance placed by courts on bonafide testimony of experts,
3. Facts that are otherwise irrelevant, shall be considered relevant when found consistence with the opinion of experts.[10]
Given the vast expansion of areas of expertise, no human can be expected to have the capacity to master all field and be a “Renaissance person.” A judge needs help from experts as and when the need arises.[11] The term "expert" in general, means a person who has special skills or knowledge in a field.[12] There are experts in wide range of professions and have wide variety of skills, training and education.[13] The people who give specialised opinion in courts u/s 45 of the IEA are called experts.[14] Experts are considered as someone who would assist the court in finding out the truth.[15] An expert is the one who has special skills in a special branch of learning, beyond the range of common knowledge. It is not necessary that a person shall have academic qualifications and degree in order to be an expert. What matter is the acquisition of special skills which can come from informal training, experience, practice, observation etc.[16] For example, we may have reference to section 47 of the Indian Evidence Act, where the evidence of a person who is not professionally trained in handwriting is admissible provided he is acquainted with the handwriting of the other person. Thus, interestingly, it is a question of fact to be determined in the totality of facts whether a person is an expert in a specialised area of knowledge or not.[17]
Next step in the process of administering evidences are admissibility. The conditions that govern the admissibility of expert evidence are categorically laid in by Supreme Court in Ramesh Chandra v. Regency Hospital[18]. They are – 1. Expert must be heard unless Section 293 of Cr.P.C. applies. This section provides that senior government experts may not be summoned. Also, there are cases wherein foreign experts have been given the permission to testify through videoconferencing[19];
2. Area of expertise must be a recognised one;
3. The evidence must be based on reliable principles;
4. He must be qualifies in the area of specialisation. This can be either by education or by way of experience.
Acquiring knowledge by way of only experience is no disqualification and goes merely to weight of the evidence and not its admissibility. Further the authority of an expert is limited to presenting his opinion in the court. He shall not act as judge.[20] It is for the judge solely to form his own independent judgment with respect to the expert evidence.[21] Before admitting expert evidence in courts, judges shall ask for methodologies, in detail, adopted by the expert and not just the results,[22] so that its reliability can be tested.
As regards weight of such forensic evidence, it has been held that these are evidences of advisory/secondary nature.[23] The courts, mostly insist on corroboration of such evidences as a matter of caution and prudence. Though it is only a general practice and there is no such rule of law.[24] It is a rule of caution and prudence.[25] Weight of the evidence is dependent on the correctness of the report, the reasons given in support of the conclusions[26], exactness of the science[27] and their expertise in the field.[28] The credibility of expert opinion depends on the reasons given in support of his conclusions. Example, footprint[29], tracker dog evidence[30] are not backed by science that is established and therefore were used only to reinforce the conclusion drawn from other evidences. Where the experts give no data in support of his opinion, the evidence although admissible, would be excluded from consideration in deciding the case.[31] An expert opinion losses its evidentiary value if he does not produce basis/authorities that support his testimony.[32]
Expert opinion is an exception to the rule against opinion evidence.[33] The rule against opinion evidence means that a witness is allow to give evidence of the facts only and not that of his opinion. An expert is not a witness to facts. It has been made admissible out of necessity[34] only. It does not go in evidence automatically without proof. T hough there are some statutory exceptions like Section 509 Cr.P.C. (Medical Certificate), Section 510 Cr.P.C. (Report of Chemical analyst) etc. In general, it is essential to check the reliability or ground on which such opinion is based. This is a specific requirement of admissibility of such evidences.[35] And, it is provided in Section 51 of the Evidence Act as well. The section says that,
“whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.”
Thus, an opinion is not evidence unless it is based on sound reasons. It is worthless without reasons.[36] He has to be examined in courts. Expert is duty bound to present to judge necessary scientific criteria so that judge can check the veracity and form an independent judgment.[37] It is only the reason and material which is the basis of expert opinion that determines the credibility of his evidence.[38] Therefore, any opinion of an expert that does not disclosed the reason in support gets discarded in courts.[39] Opinion render by experts in courts are not beyond the scope of judicial review.[40]
1.2. Gatekeeping Function of Courts
Forensic evidences, unlike ocular evidences, are considered as demonstrative in nature i.e. they are based on some technique, theorem, empirical data, method etc.[41] These principles/techniques on which the forensic evidences are based should be shown to be trustworthy by the expert testifying in court. The standard of proof expected from forensic expert shall depend on the nature of the science. The discretion and authority to examine the veracity of an expert’s averments lies with the presiding judge.[42]
Reliability of expert evidences is a requirement that other types of evidences like eye witnesses etc., are not required to meet. Some of the possible reasons for this are[43] -
- Expert evidences are purported as science and are an exception to the rule against opinion evidence,
- Expert evidence can unduly influence the minds of judges making them overvalue the weight of such evidences,
- It is practical to examine reliability of such evidences.
Reliability means the quality of “repeatability, reproducibility, and accuracy.”[44] “Reliability” refers to the quality of something being consistent. For example, a method will be called reliable if it leads to same result even when performed by different people at different times.[45] It is different from validity. Validity refers to the suitable of the method for the purpose for which it is employed.[46] A technique can be reliable though not valid. For instance, a test that employs skin colour for deciding one’s culpability would yield same result all the time, as everyone would concur in respect of the colour of the accused. And, thus it would be a reliable method. But, it would not be correct way of deciding the guilt and therefore would not be valid. In contrast, the idea of validity presupposes reliability. Meaning test can never be valid if it is not reliable. Scientific validity, as opposed to mere validity, means that a method is shown to be reliable enough based on empirical study.[47]
It is thus evident enough that the credibility of the forensic scientific evidence always depends on the reliability of the test conducted. Forensic evidence presented in the courts as evidence shall pass muster to the standards of probative utility. The courts have to be alert and highly careful in placing reliance on it. This, however, poses a great difficulty to the judges.[48] Judges are required to act proactively while dealing with questions of reliability of forensic evidence. The lawyers though have an interest in reification of science to support their case, their interest in the outcome of the case makes them inevitable manipulate the scientists.[49]
This is where the gatekeeping function of the courts comes into play. The role of the trial judge is not just to decide whether the expert testimony is relevant but also whether the science/technique that lies at the foundation of the testimony is reliable enough to be considered as valid.[50] One of the motive behind giving this responsibility to judges is to reduce intrusion of scientists outside the courtroom from directly influencing litigation.[51]
1.3. Daubert Standard
In relation to testing the validity of polygraph test, the Supreme Court in the famous case of Selvi v. State of Karnataka[52] referred to US cases which discussed the validity of Polygraph test as per the Daubert Standards. The Supreme Court of United States in the revolutionary case of Daubert v. Merrell Dow Pharmaceuticals, Inc[53] placed on the trial courts the role of a “gatekeepers” which is to ensure that the expert evidence presented to court is not just relevant but also reliable. The judgment tasked the judges with the responsibility of scrutinising the science coming to the court. [54] Factually in the case, one company, Merrell Pharmaceuticals manufactured a drug called ‘benedectin’ which was being prescribed for “morning sickness” during pregnancy. The issue involved in the case was whether use of this drug led to birth defects in new-borns. The US Supreme Court in the judgment identified four non- definitive and non-exhaustive factors that were thought to be illustrative of characteristics of scientific knowledge. They are – · testability or falsifiability, · peer review, · a known or potential error rate, and · general acceptance within the scientific community. It is not possible to find one uniform standards that would apply to all sciences as each of the technique/method of scientific enquiry is at difference stage of sophistication; each has its own tools, assumptions, methodologies, goals etc.[55] For example, there is vast difference between clinical physicians and physicians involved in research. For the clinical physicians the goal is to avail patients with medicines. And for the research oriented physicians the goal is to conduct trial and check the efficacy of new medicines.[56] Each of forensic technique/method has its own methodology. Moreover, each is different in the level and degree of their scientific development.[57]
2. EPISTEMIC DISCONNECT BETWEEN LAW AND SCIENCE
“Law is the cement of the society.”[58] And so is the case with science. As much as Law and science are meant to serve the society, the two are completely different disciplines. Law calls for consistency and predictability whereas scientific conclusions are subject to refinement and further testing.[59] “Scientific method refers to the body of techniques for investigating phenomena, acquiring new knowledge, or correcting and integrating previous knowledge. It is based on gathering observable, empirical and measurable evidence subject to specific principles of reasoning.”[60] By virtue of these differences, there is need for adaption of some kind before scientific evidences are used for the purposed of law.[61] Berger and Solan (2008) [62] have stated that Science and law always have had an uneasy alliance. Law is a normative pursuit which tends to define the proper course of public and private functions. It tries to go as close as possible to a just decision of a case with finality and conclusively. In contrast, science is a descriptive pursuit, which does not bother to define the rules of universe. Science describes what the nature of things actually is. This difference in very nature of science and law poses both pragmatic and systemic dilemmas for the law. Uncertainty, arising from inadequate date, indeterminacy and ignorance, is an integral part of science.[63] While, predictability and uniformity are some of the highly valued principles in legal arenas.[64] The Supreme Court in India has time and again held that “If one thing is more necessary in law than any other thing, it is the quality of certainty.”[65] The pathway to “truth” for science is through gradual revision of its theories and findings with the help of empirical testing. However, as regards a legal system, decisions are not to be made gradually. The decisions once made in court are final and conclusive.[66] For Instance, in a claim of injury due to a silicone gel breast implant, the court is required to decide, whether or not the expert evidence is clear or not. The court does not have the option of keeping the case pending till scientist conduct detailed study on this subject. “In this regard, the judge is more like an emergency room physician, who often must make decisions on a very incomplete medical record and with little information about the particular patient.” While, in a similar circumstance, a scientist would examine this issue by designing an experiment, delve into research etc. Unlike judges, a scientist examining of whether silicone gel breast implants cause autoimmune diseases will study the problem, may be design new experiments, and do more and more research.[67] Law and science are, though interdependent[68], totally different in their goals, culture, methodologies etc. The goal of science is to find universal truths. In law, the results are mostly localised and content specific. Each subject has importance in some areas of our lives. When natural forces are the main concern, natural laws play the governing role. When it comes of code of conduct for people in daily lives and activities in society, it is the man-made law that gets priority. Discussion about relation and difference between science and law can be seen in environment cases as well. Environmental cases involve abundant use of science.[69] And, the experts and their inputs are important for the working of the National Green Tribunal.[70] In the environmental cases, the uncertainty of scientific findings has created serious problems for the judges. In the case of, A.P. Pollution Control Board vs. M.V. Nayadu and Ors. (27.01.1999 - SC)[71], it was held that “Uncertainty becomes a problem when scientific knowledge is institutionalized in policy making or used as a basis for decision-making by agencies and courts. Scientists may refine, modify or discard variables or models when more information is available; however, agencies and Courts must make choices based on existing scientific knowledge.”
3. JUDICIAL APPROACH TO SCIENTIFIC EVIDENCE
Despite authoritative research and publications, attorneys and judges are uninformed of the difficulties and risks associated with forensic evidence. Courts, lawyers, and experts should be fully aware that certainty is impossible, human mistake is a possibility, and subjectivity is an inherent part of the process. The use of categorical judgments should raise red flags. It is essential to accept the limits of forensic evidence owing to its subjective nature and the fact that it is not without flaws.[72] Scientific warnings have been ignored by courtroom players, who have opted for traditional views in the service of legal precedents. The Achilles heel of judges is their unwillingness to go into realms beyond their intellectual skills. Cross examination and counter evidence do not encourage or enable attorneys to find, analyse, or voice epistemological concerns about forensic evidence. Nor have they placed the judges in a position to reasonably assess expert evidence.[73] Perhaps more troubling was the magistrate's presentation of limits and mistakes as a matter for defence counsel in an accusatorial procedure. In summary, it is disturbing that the availability of scientific knowledge has had no affect on contemporary legal practise. Surprisingly, few of the objections raised against forensic evidence focus on the epistemological (or epistemic) value of the evidence. Almost never has the validity and reliability of forensic evidence been fully questioned or explored. If epistemological issues existed, they would centre on the validity and reliability of processes, indicative error rates, examiner proficiency, the presence and application of standards, the empirical foundation for forensic examiners' expressions, and how cognitive bias risks are controlled. By resolving these epistemological issues, those responsible for evaluating the data would have been able to evaluate if the approach works, how well it works, and under what conditions it works. To generations of lawyers and judges, the notion of contesting the underlying methodology (for example, validity), the categorical assertion of view, or the accuracy seems inconceivable. Unqualified judicial confidence in expert testimony reflects a larger reluctance on the part of some forensic scientists to accept the frailties and limitations of their methodologies.[74]
4. REVIEW OF SUGGESTIONS
Some of the suggestions to bring improvement to the current system, that are given by various scholars, from time and again are:
4.1.Training
It is only a well-informed judge who can check whether the standard of expert report present to him is up to the mark or not. Professionals in the field of law mostly do not have any formal training to understand and evaluate forensic science in an informed way. They ought to be imparted with training and education “in the fundamentals of science, statistics, and common forensic practices; and in the limitations of, and potential forms and scope of error associated with, those practices.”[75] Cheng (2007)[76] asserts that the judges who comprehensively understand a scientific issue, can make more sound scientific admissibility decisions. The required education can be attained either before or during the litigation. The judicial training programs can provide the judges with a broad understanding the issues involved in general. And, during the litigation the judges may independently delve into library based research. Judges are ill-informed assessors of testimony given by experts who are retained and paid by litigants.[77] The judges are vulnerable to situations where one monetarily strong party can produce a parade of scientific experts.[78] As a result, the decision of a case gets affected by purchased or biased scientific knowledge.[79] The Innocence project also promotes and supports training of judges. [80] In a National Survey[81] of 400 state trial judges in USA, on the judges ability to comprehend and apply Daubert demonstrates that clearly there is requirement of more emphasis on science-based education of judiciary. To quote, it says “the practical value of Daubert for judges may never be fully realized unless judges are provided with sufficient judicial scientific education to allow them to perform their gatekeeping role.”
4.2.Appointment of a Neutral Expert
Christopher(2007) suggests that a more viable solution to the menace of partisan experts would be take help from a neutral expert in the relevant branch of science and technology.[82] The neutral scientific advisor can provide the court with non-party advice. It is believed that there would be less institutional resistance to this option as the report given by the neutral expert would be non-binding. This would ensure that the decision making power is retained with judges only.[83] Secondly, any mistake in decision yet made by both, the judge and the neutral expert, shall cause trust loss to a lesser extent.[84] Justin P. Murphy (2000)[85] has proposed setting up of a permanent body of specialised expert to help the judges combat the issue of reliability of the expert evidences. This body of expert can provide an impartial assistance to the courts. They would cater to the court and not to one of the parties involved in the case. This body can provide the court with necessary resource and a pool of specialised experts from which court can select one as and when required.[86] The crucial element of this proposal is to provide courts with easy access[87] to relevant experts who do not have a stake in the claim before the court. Separating the expert from the parties, will free him from the burden of pleasing the litigant who hires him and would permits the expert to focus mainly on his or her duty in the litigation which is to utilize his or her expertise to analyze and explain the relevant issues to the judge without any undue influence or pressure.[88] This would put a stop to menace of “jukebox experts who sing the tunes they [89]are paid for.”[90] This would help in better assessing the reliability of expert evidence in the following ways- 1. Neutral expert would have no stake in the case and thus would be able to objectively assist the court in comprehend complicated technical matters; 2. An independent expert would be able to identify the crucial flaws in the testimony proffered by party experts in court which is not possible for a not scientifically trained judge or lawyer.
4.3.Tightening Qualification of Experts
Another suggestion is tightening of qualification requirement of experts.[91] Determination of questions such as whether expert is qualified enough or not lie within the exclusive domain of the trail judge. The discretion is often exercised quite loosely, meaning a professional from a general field of science may come to testify on a subject that calls for a specialist in that specific branch of science.[92] For instance, calling an orthopaedist or neurosurgeon to testify in place a general medical practitioner in courts.[93] Choosing of appropriate qualification concerning the technical matter in hand may in turn require technical assistance from neutral expert/experts.
[1] Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science in the United States: A Path Forward 136 (National Academies Press, 2009), hereinafter referred to as NAS. [2] Innocent Project, available at https://www.innocenceproject.org/cases/kirk-odom/, (last visited 27th Sept., 2021). [3] Gary Edmond, Latent Science: A History of Challenges to Fingerprint Evidence in Australia (38 U. Queensland L.J., 301, 2019) [4] “Kirk Odom”. available at https://www.innocenceproject.org/cases/kirk-odom/, (last visited 2nd Oct., 2021) [5] R. v Dlugosz, Pickering, [2013] EWCA Crim 2. [6] WEBSTER'S NEW COLLEGIATE DICTIONARY 1051 (9th ed. 1991). [7] B.S.Nabar, Forensic Science in Crime Investigation 1 (3rd ed. 2018). [8] NAS, supra. [9] Ramesh Chandra v. Regency Hospital, (2009) 9 SCC 709. [10] Sati M, Evidentiary Value of Forensic Report in Indian Courts, Scholarticles, (Feb. 11, 2016), https://scholarticles.wordpress.com/2016/02/11/ms1/. [11] Boaz Sangero & Mordechai Halpert, Scientific Evidence v. “Junk Science,” 11 C.L.B. L.STUD. 425, 430 (2014) (Isr.) at 1136. [12] Webster's Nuw Collegiate Dictionary (9th ed. 1991). [13] Kapsa, Marilee M. and Meyer, Carl B, Scientific Experts: Making Their Testimony More Reliable, California Western Law Review, 35 315 (1999) http://scholarlycommons.law.cwsl.edu/cwlr/vol35/iss2/5. [14] Indian Evidence Act, 1872, s. 45. [15] Oren Perez, Judicial Strategies for Reviewing Confliction Expert Evidence: Biases, Heuristics, and Higher-Order Evidence, 64 Am. J. Comp. L. 75 83 (2016). [16] Sati M, Evidentiary Value of Forensic Report in Indian Courts, Scholarticles, (Feb. 11, 2016), https://scholarticles.wordpress.com/2016/02/11/ms1/. [17] Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, The Law of Evidence 750 (23rd ed. 2010). [18] (2009) 9 SCC 709. [19] Malay Kumar Ganguly v. Dr.Sukumar Mukherjee, (2009) 9 SCC 221. [20] Id. [21] Titli v. Jones, AIR 1934 All 237. [22] Sangero, supra, at 1136. [23] State of Himachal Pradesh vs. Jai Lal and Ors., MANU/SC/0557/1999. [24] Ranchhoddas, supra, at 757; Murali Lal v. State of M.P, AIR1980SC531. [25] Parappa and Ors. vs. Bhimappa and Ors., MANU/KA/0059/2008. [26] Malay Kumar Ganguly v. Dr.Sukumar Mukherjee, (2009) 9 SCC 221. [27] Agarwal, A. and Gangopadhyay, P., Use of Modern Scientific Tests in Investigation and Evidence: Mere Desperation or Justifiable in Public Interest, NUJS L. Rev., 2, 31(2009). [28] Parappa v. Bhimappa, 2008 AIHC 2777, 2783 (Kant HC). [29] Pritam Singh v. State of Punjab, AIR1956SC415. [30] Abdul Rajak Murtaza Dafedar v. State of Maharastra, AIR1970SC283. [31] Ramesh Chandra Agrawal vs. Regency Hospital Ltd. and Ors., MANU/SC/1641/2009. [32] Dalal, A.S. & Mukherjee, Arunava, Constitutional and Evidentiary Validity of New Scientific Tests, JLI, 49 (2007). [33] Id, at 313, [34] Monir M., The Law of Evidence, Universal Law Publication 233 (10th ed., 2015). [35] Ramesh Chandra Agrawal vs. Regency Hospital Ltd. and Ors, MANU/SC/1641/2009. [36] M.Monir, The Law of Evidence, 46 (2015), at 257. [37] Chellappan v. State of Kerala(Kerala HC), Cr. Appeal No. 760 of 2009, decided on 13/09/2012. [38] Id. [39] Hazi Mohammad Ekramul Haq v. State of W.B., AIR 1959 SC 488. [40] Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, The Law of Evidence 750 (23rd ed. 2010) 755. [41] Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263. [42]Setia, supra. [43] Sangero, B., supra, p.1129, 1135. [44] Report to the President, Forensic science in criminal courts: ensuring scientific validity of Feature Comparison Methods, 1 (Sep, 2016), p 47. [45] Sandy A. Zabell, Fingerprint Evidence, 13 J.L. & POL’Y 143, 154 (2005). [46] Arshad, H., Jantan, A. B., & Abiodun, O. I., Digital Forensics: Review of Issues in Scientific Validation of Digital Evidence, Journal of Information Processing Systems, 14(2) (2018). [47] PCAST 2016 Report, supra, at 48. [48] C.E.Pratap, Probative Efficacy of Forensic Scientific Techniques in Criminal Trials, Academia, (last visited Nov. 25, 2019). [49] Jenny McEwan, Carol A. Jones, Expert Witnesses: Science, Medicine, and the Practice of Law, 4 Soc. & Legal Stud, 552 (1995). [50] Christopher Mueller & Laird Kirkpatrick, Evidence, 7, 8 (1995). [51] Gary Edmond, Science, Law and Narrative: Helping the Facts to Speak for Themselves, 23 S. ILL. U. L. J. 555 (1999). [52] AIR2010SC1974. [53] 509 U.S. 579 (1993). [54] Hilbert, J., The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of Junk Science in Criminal Trials, Okla. L. Rev., 71, 759 (2018). [55] Kapsa, Marilee M. and Meyer, Carl B, "Scientific Experts: Making Their Testimony More Reliable," California Western Law Review, Vol. 35: No. 2, Article 5, 317 (1999). [56] Id. [57] NAS 2009 Report, supra, at 111. [58] Meera Bangotra, Use of Modern Scientific Deception Detection Techniques in Criminal Investigation in India: A Study from Constitutional and Human Rights Perspective, Journal of Global Research & Analysis, Vol 5(2), 55 (2016). [59] Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993). [60] Isaac Newton (1687, 1713, 1726) “Rules for the study of natural philosophy,” Philosophiae Naturalis Principia Mathematica. [61] Orofino, S., Daubert v. Merrell Dow Pharmaceuticals, Inc.: the battle over admissibility standards for scientific evidence in court, Journal of Undergraduate Sciences, 3, 109-11 (1996). [62] M.A. Berger and L.M. Solan, The uneasy relationship between science and law: An essay and introduction, 73 Brook. L. Rev. 847 (2008). [63] Brian Wynne, Uncertainty and Environmental learning, (2. Global Envtl. Change 111) (1992). [64] State of Gujarat v. Gordhandas Keshavji, AIR 1962 Guj 128. [65] Mahadeolal Kanodia v. Adm. Gen. of WB, AIR 1960 SC 936. [66]Science and Technology in Judicial Decision Making Creating Opportunites and Meeting Challenges, A Report of the Carnegie Commission on Science, Technology and Government (March, 1993). [67] Id, p 27. [68] Associate Justice of the Supreme Court of the United States Stephen G. Breyer, The Interdependence of Science and Law, Address at the 1998 American Association for the Advancement of Science Annual Meeting and Science Innovation Exposition (Feb. 16, 1998) (available in The American Assoc. for the Advancement of Science (visited Mar. 26, 1999) <http://www.aaas.org/scope/Breyer.htm>). [69] R. Feldman, The Role of Science in Law (Oxford University Press, 2009); A. Green & T. Epps, The WTO, Science and the Environment: Moving Towards Consistency, 10(2) Journal of International Economic Law, pp. 285–316, at 302–7 (2007). [70] Gill.G.N, Environmental Justice in India: The National Green Tribunal and Expert Members, 5 TEL 175 3 (2016). [71] MANU/SC/0032/1999. [72] A Campbell, ‘The fingerprint Inquiry Report’ (2011) 43 Edinburgh, Scotland: Aps Group Scotland 790, at 684. [73] NAS report, supra note 5, at 18. [74] Edmond, G., Tangen, J.M., Searston, R.A. and Dror, I.E., Contextual bias and cross-contamination in the forensic sciences: the corrosive implications for investigations, plea bargains, trials and appeals, 14(1) Law, Probability and Risk 1-25, 25 (2015). [75] NAT’L ASS’N OF CRIMINAL DEF. LAW. (NACDL), PRINCIPLES AND RECOMMENDATIONS TO STRENGTHEN FORENSIC EVIDENCE AND ITS PRESENTATION IN THE COURTROOM 1 (2010), www.nacdl.org/WorkArea/DownloadAsset.aspx?id=17775. [76] Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263 1273 (2007). [77] W. Twining, ‘Preparing Lawyers for the Twenty First Century’ (1992) 3(1) Legal Education Review, pp. 1–16, at 14 [78] P.W. Huber, Galileo’s Revenge: Junk Science in the Court Room (Basic Books, 1991). [79] S. Jasanoff, Science at the Bar (Harvard University Press, 1995); S. Jasanoff, Just Evidence: The Limits of Science in the Legal Process (2006) 34(2) Journal of Law, Medicine & Ethics, pp. 328–41. [80] Forensic Science Problems and Solutions, available at https://www.innocenceproject.org/forensic-science-problems-and-solutions/, (last visited 5th Oct. 2021). [81] Gatowski, S.I., Dobbin, S.A., Richardson, J.T., Ginsburg, G.P., Merlino, M.L. and Dahir, V., Asking the gatekeepers: A national survey of judges on judging expert evidence in a post-Daubert world., Law and Human Behavior, 25(5), pp.433-458 (2001). [82] Christopher Onstott, Judicial Notice and the Law's Scientific Search for Truth, 40 Akron L. Rev. 489 (2007). [83] Id, at 490. [84] Id. [85] Justin P. Murphy, Expert Witnesses at Trial: Where Are the Ethics, 14 Geo. J. Legal Ethics 217 (2000). [86] Id, at 236 [87] Joe S. Cecil & Thomas E. Willging, The Use of Court-Appointed Experts in Federal Courts, 78 Judicature 41 (1994). [88] Samuel Jackson, Technical Advisors Deserve Equal Billing With Court Appointed Experts In Novel and Complex Scientific Cases: Does the Federal Judicial Center Agree?, 28 ENvTL. L. 446 (1998). [89] David Faigman, A Look At Experts in the Courtroom; A Way to Sort Out Science From Spin, WASH. POST, Aug. 22, 1999, at B3. [90]Jeff Nesmith, Science on Trial, ATLANTA J. CONST., June 13, 1999, at D4. [91] Harold L. Korn, Fact, Law and Science in the Courts, Columbia Law Review, Vol. 66, No. 6 (Jun., 1966) p 1080. [92] Id. [93] FISCH, NEW YORK EVIDENCE 246 (1959).
Comentarios