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CRITICALLY UNDERSTANDING ADMISSION
OF EXPERT EVIDENCE: PROBLEMS
& REVIEWING WHERE INDIA STANDS
INTRODUCTION
The relationship of the scientific and legal
fields have improved over the decades from
the day when Sir William J. Herschel, a British
officer, started using fingerprinting from the
year 1877 in Hooghly, West Bengal to abate
the repudiation of signatures on contracts,
deeds and registering Government approved
pensioners. The establishment of a fingerprint
bureau in Calcutta, led by Azizul Haque and
Hem Chandra Bose, supervised by Sir Edward
Richard henry, marked the first step towards
the scientific development of evidentiary
law in India. Evidentiary law in India makes
space for expert evidence from Section 45
to 51 of the Indian Evidence Act. Section 45
* 4th year, B.B.A.- LL. B. The Neotia University Sarisa, West Bengal Email: kalakar5090@gmail.com
Kaustov De Sarkar*
enables the courts to admit testimony and
findings of experts in the fields of science
or art, foreign law, handwriting or finger
impressions as evidence. Expert evidence is
difficult to admit as the court is vested with a
variety of responsibilities such as judging the
competency of witnesses as experts, keeping
themselves updated with the works of forensic
science governing bodies in their respective
regions such as the Directorate of Forensic
Science Service (DFSS) in India or the Forensic
Science Regulator of the UK and also criticisms
of the methods employed by them if possible
and also to react to the negative effects of
technology which may lead to misconvictions.
A burden falls on the prosecution and the
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forensic fraternity as well. Scientific evidence’s
probative value rises only when there is other
evidence in the same direction. An expert’s job
is to explain the test results to the court and
not put forth any view that how admissible his
evidence is when looked at from the context
of other evidence. Such a role is for the judge
to play. The experts should simply place the
results and not bring theories which support
their results. Similarly the prosecution, in case
of doubt of fallacy regarding the tests and
procedures to extract evidence, must declare
such doubt to the court to promote truth and
justice rather than the passion to win the case.
Accreditation of laboratories is also
an imperative factor, and the International
Standardization Organization (ISO) governs
Indian standards of forensic labs. ISO was
founded in 1946, London in a meeting at the
Institute of Civil Engineers. ISO covers a
variety of scientific fields and issue forensic
science standards under ISO/IEC 272.
(Digital evidence is collected, analyzed, and
interpreted, in integration with ISO/IEC 27037
(ISO 2019). In this view, Warner & Roberts say
“…scientific integrity has been characterized
as a commitment to truthfulness, to personal
accountability, and to vigorous adherence to
standards of professional conduct”
The above points being made, this
research will seek to explore how well these
responsibilities are carried out. The research
also discusses trends which raise difficulties
to the truth seeking craft of forensic
science along with recommending fruitful
improvements to refine the system further.
THE RESPONSIBILITIES OF
PROSECUTORS
In the adversarial system, a prosecutor
represents the people of the state & by people,
it means the government. A prosecutor “must
be especially careful to avoid misconduct
because, as a prosecutor well knows, her
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comments carry the imprimatur of the
government.” A sovereignty is expected to rule
impartially or not rule at all. We also consider
representative of such an impartial body the
‘minister of justice’ and under his supervision,
guilt must not escape, and innocence must not
suffer. A prosecutor’s aim must be to present
what the crown thinks is true and exclude any
notion of winning or losing.
The prosecutor’s responsibility is special
regarding scientific evidence as well. M.
Redmayne had said that expert evidence can
be so persuasive that if abused, the guilty may
go free and innocent convicted, and that fear is
genuine. In Mohd. Iqbal v. State, the Delhi High
Court rejected deliberate evidence framed
by the prosecution & acquitted two Kashmiri
businessmen falsely accused of planning a
bomb blast at the Delhi railway station. The
evidence, for instance, included false cyber
evidence (photographs) that were not even a
part of the charge sheet or the final report. The
prosecution further misrepresented forensic
evidence & their story rarely matched the
statements of the public witnesses.
Dr. Mathias Ruzindana’s, a linguist in the
University of Rwanda explains, the behavior
of prosecution clears when we understand.
As a seasoned expert witness, he says that
lawyers have a case to win and only care about
the points in the evidence which favor their
case. Even the defense lawyers, during cross-
examination, ask tricky questions to expert
witnesses which may make the experts angry,
helping them to prove bias in the report.
Another very celebrated case was that
of Arushi Talwar. The facts were that Arushi
Talwar, a fourteen-year-old along with a
house servant Hemraj were found dead and
the prosecution cooked up the story that both
the victims were found in a compromising
position and thus, Arushi’s parents, out of rage,
murdered both and tried to evade. However,

the Allahabad High Court held otherwise
after examining the evidence produced. Post-
mortem report suggested that Arushi Talwar
was neither sexually assaulted, nor raped. The
reconstruction report produced by MS Dahiya
was also based on subjective opinion and
incorrect facts provided by the investigating
agency. Prosecution tried hard to frame the
parents but couldn’t, since there was no
evidence to suggest double murder. Even the
weapon used for murder couldn’t be found out,
as the theory that they hit the victims with a
golf club was also false. The Allahabad High
Court at last, while demolishing the trial said:
“But the point is that the learned trial
judge cannot act like a math teacher who is
solving a mathematical question by analogy
after taking certain figure for granted… It is
apparent that the trial judge was unmindful of
the basic tenets of law and its applicability to
the given facts of the case…”
The above portrays perfectly how much
authority the prosecution and the police
have over the crime scene, which can turn
a simple case into a movie thriller. It further
highlights how badly evidence can be handled
and manipulated even after when there are
judgements like Dharam Deo Yadav v. State of
U.P. where the Indian apex court highlighted
the importance of forensic evidence in the
vilest of cases. Bad handling of evidence,
bribery and political power also contaminates
the pieces of evidence acquired and reduce
their probative value in the courtroom.
In the above case, the prosecution
misrepresented the facts & evidence, although
it was for the High Court’s legal wisdom that
they couldn’t succeed. Another case of
misrepresentation was Carroll v. State, which
involved a death & injuries because of a car
crash. The accused was charged with homicide
and convicted based on the faulty investigation
report by an incompetent examiner even
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when an experienced investigating officer
investigated genuinely. They did this with the
sole motive of winning a conviction. Although
on appeal to the Georgia Court, the accused
was exonerated.
Sometimes, the prosecution gets so
interested in framing the accused and get
conviction quickly because of public pressure
that they even stop inquiring for innocence,
just like the police in Mohd. Iqbal did not even
inquire whether the accused was a common
businessman as alleged by a public witness.
The Nirbhaya case can be a good example of
public pressure over politics and prosecution
however, investigative authorities did a great
job with producing the forensic report.
ACCREDITATION & EDUCATION OF
PROFESSIONALS
Accreditation is gaining prevalence
with scholars and intellectuals coming up
with constant recommendations on setting
better and clear standards for laboratories
and lawyers. Accreditation cannot be self-
assessing, over watch must be there from
the outside, which strengthens performance
of the labs and also the relationship among
the professional fraternity. It also exposes
scientists to different aspects and fellows in
the profession. However, such inspections are
not prevalent in India. Inspections are crucial
since they figure out appropriate methods
used during forensic examination because
science requires conclusive proof to approve
of a method whereas in law, the parties need
to prove their case by a preponderance of
the evidence. Science needs to be a hundred
percent sure and accurate of the results
whereas if majority of the evidence in the court
supports a result, that result is deemed to be
the truth.
Accreditation also educates the police
and the lawyers about handling and interpreting
scientific evidence. The examples on how the
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police & the prosecution acts with respect
to Scientific evidence has already been set
above. India currently follows the International
Standardization Organization (ISO-IEC 272 for
forensic laboratories), along with many other
countries who are starting to promote world-
wide common standardization of rules and
methods to bring about cooperation in the
field of criminology. The Forensic Science
Services in Great Britain has initiated a project
to promote a uniform approach in forensic
science decision making. The authors of the
project, with discussions with scientists from
all disciplines, formed a model for uniform
reporting.
National Accreditation Board for Testing
and Calibration Laboratories (NABL) can also
along with the judiciary develop ethics for
scientists and lawyers engaged in criminal trials
which might create a sense of responsibility,
although experts rarely turn to the code, but
such rules act as a congregation of experts
of the forensic professional community.
More importantly, such rules form a basis for
sanctions in case of bad conduct. Such ethics
of conduct and scientific methods must take
note that the utilitarian theory of morality must
not be followed. The insistence on correct
method must be paramount since bad forensic
evidence can easily land innocents in jail and
the Apex court also shared this concern in
Murarilal v. State of Madhya Pradesh and
spoke:
“His (expert’s) opinion has to be tested
by the acceptability of the reasons given by
him. An expert deposes and not decides. His
duty is to furnish the judge with the necessary
scientific criteria for testing the accuracy
of his conclusion, so as to enable the judge
to form his own independent judgement by
application of these criteria to the facts proved
in evidence.”
Putting effort in solving ethical issues
8 LEGAL NEWS & VIEWS JANUARY 2022
and strengthening accreditation will be helpful
because standardization will gain international
recognition, will reduce the chances of re-
testing. Many research also support that
implementing ISO standards make laboratories
much more efficient. Top Management
Commitment (TMC) is also emphasized by
experts as many labs are being certified
regularly, motivating leadership focusing on
quality objectives and ensuring integrity of
management system also is crucial.
In India, forensic education is not
very popular since there is not enough job
opportunities generating in the field and thus,
the country doesn’t have universities focused
on forensic science. Even the Malimath
Committee criticized the state of Forensic
education saying, “there are virtually no
facilities for training of Forensic Scientists in
the country and they mostly learn on the job”
and also that Forensic Science has not attained
the status of an academic discipline in the
country. There’s also a lack of identification
database and also a stark shortage of
statistical data for error rates of methods used
in forensic tests. Also experts stress on equip
the lawyers with primary forensic education
within the universities themselves since the
present legal education does not improve their
methodological reasoning. Forensic science
must along with in universities, be introduced
at school level as subjects. The medico legal
education is also in a neglected state.
CHALLENGES WITH THE LAW
In India, scientific evidence has been
in use for long however, but there are
many factors with our legislature that are
impediments in the admission of good forensic
evidence. Recently in 2014, in Banrasi Dass v.
Teeku Dutta, the Supreme court while deciding
a case under Section 112 of the Evidence
Act, 1872 (Act no. 197201), the court placed
conclusive reliance on the DNA test than on
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the conditions of the section stating that the summarizes the need for precise rules to admit
legislation was made when scientific tests forensic evidence and also to put responsibility
were not prevalent. This highlights the need on the trial courts to find out the validity of
to amend the laws with current atmosphere incriminating evidence.
& tap the efficiency and efficacy of forensic
System in India
science. However, old legislation is not the
There are two systems of imparting
only setback. Already discussed above, the
justice, adversarial and inquisitorial.
Indian police is poorly trained in carrying out
Adversarial system was adopted in the United
investigations, specifically on how to handle
Kingdom but spread to all the countries that
and transport evidence, owing to which pieces
they colonized. Adversarial system is also
of evidence suffer damage or get destroyed
called accusatorial system, since here the
and are sometimes not even admitted.
parties raise the case and bring their own
Again, there are no clear procedures to judge
evidence before an impartial judge. The
the validity of methods employed to test
inquisitorial system of justice is where the
scientific evidence because even Chemistry
courts are responsible to find out the issues
and mathematics post-graduates are taken to
of the case & acquire evidence against and for
examine handwriting whereas bright forensic
the accused which expands the role of judges.
students are ignored for such tasks because
The responsibilities of a lawyer in this system
of archaic recruitment rules, or when the
is diminished to a level where they cannot even
prosecution used ‘Fantamorph’ (a software
contact the witnesses in anyway, for instance
to edit and create morphed animations for
in Germany.
entertainment purposes) as a forensic tool
In India, adversarial legalism is popular
for facial superimposition in the Sheena Bora
but with a blend of inquisitorial since Article 14
case. Education varies so much throughout
of the Indian Constitution guarantees justice
India (because of language and location)
to every citizen of the state, which is contrary
that it becomes challenging to accredit the
to the strict understanding of the accusatorial
universities which is mandatory in the United
system. Also, the law puts responsibility
Kingdom. There is also an absence of any formal
on the courts to frame charges rather than
association for forensic scientists like there
the prosecution under S. 228 and 240 of the
are for lawyers and doctors. Such association
Criminal Procedure Code (cr.pc.). Judges are
spread uniformity, enforce code of ethics and
to settle such disputes which have prima facie
bring fraternity among professionals of the
merit. The Cr.pc. under S. 311 empowers the
same field.
judges to examine witnesses brought by the
Lower courts rarely corroborate the
parties or called by the judges themselves,
scientific report presented and convict by
similar to S. 165 of the Indian Evidence Act.
putting much reliance on the prosecution’s
Under S. 313, the court can also examine the
evidence. The upper courts, because of their
accused and S. 321 allows the prosecution
legal expertise are much better at that job
to withdraw the case only after the court’s
which is clear when the Supreme Court in the
permission.
Bhopal gas tragedy where the Apex court,
Prof. S. Goldstein, is of the opinion that
even after considering the string investigation
in countries, both the systems are converging
by the police, acquitted the appellants of
and not strictly followed and says-
the charges set by the lower court. This
“It is becoming increasingly apparent to

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criminal justice scholars that single theory court. The committee assigns a proactive role
models of criminal procedure – whether to the judges like that in Inquisitorial system
termed inquisitorial or adversarial – are but does concur the accused is better served
being stretched beyond their capacity by the in the accusatorial system.
phenomena they are designed to control.” Both the systems have their advantages,
The Indian system is, however, not free but a study shows that there is a greater
of flaws. The guarantee and procedure to chance of admitting biased forensic evidence
provide free justice to the people who cannot under the inquisitorial system.
afford it under Articles 14, 39A, 21 and 22 of the
Flaw in the Law
constitution is not observed very effectively
It is also the statutory aspect along with
since the public defendants themselves
the justice system that calls for a revamp in
lack motivation and funding to defend which
India. There have been many suggestions
hampers the growth of proper scientific
that can be considered, but the first would
evidence as well, and explains that in the
be to amend the country’s evidentiary law.
adversarial system, justice is for those who
Taking a comparative approach here would
can afford it. State afforded justice becomes
be helpful. Frye v. United States, which, while
a mere formality.
admitting scientific evidence, remarked that
Former Indian president Dr. R.
the scientific results yielded must be by a
Venkataraman says that in the adversarial
method which is “sufficiently established
system:
to have general acceptance”. These words
The Judge is not concerned with the truth;
created a precedent for the scientists who
he is only concerned with the proof. Those who
to an extent started evaluating their methods
know that the acquitted accused was in fact
by themselves and with no review, produced
the offender, lose faith in the system”.
imperfect science/evidence in the courts.
The Supreme court highlighted its
The judges admitted those evidence passively
concerns as well in Ram Chandra v. State of
which led to numerous misconvictions. The
Haryana, by saying that the judges during trials
Frye judgement enjoyed precedence for
assume the role of a referee and let the parties
a long period until Daubert v. Merrell Dow
fight out the case, letting “combative and
Pharmaceuticals. The judgement of Daubert
competitive” elements enter the courtroom.
rendered struck down ‘general acceptance’ and
These opinions are not surprising when
1. advocated for practical reviews of the
considering the authority the state has over the
scientific methods by peers and those
forensic laboratories, the investigation sites,
reviews must be published.
documents collected and also the witnesses
2. Professional standards for such scientific
to the police lists, making it a contest between
methods.
the prosecution and the defendant.
3. Assigned a proactive role of a ‘gate-keeper’
The Malimath Committee, set up for
for the judges.
recommending reforms in the criminal justice
The ‘Gatekeeper Approach’ was introduced
system, suggested that a preamble may be
in Kumho Tires Co. ltd. v. Carmichael where the
added to the Crpc which will reinforce the
role of the judges was expanded to areas not
duty of the judges of protecting the innocent
related to science.
and punishing the guilty and that the quest for
The Indian scenario is noticeably different
truth should be the fundamental duty of every
when we consider the Indian Evidence Act,

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1872, especially the Sec. 45 which lets the
courts to admit expert evidence by people
who are “specially skilled” in such field of
study. Lawyers and judges in India have no
standards set by the courts to examine the
validity of scientific evidence. The phrase
‘specially skilled’ is equivocal and can allow a
self-proclaimed expert bringing evidence to
the court.
Gone are the times where the Allahabad
High court got away by subjectively evaluating
a skill and calling it science in Din Muhammad
v. Emperor and said-
“The knowledge of footprints has similarly
been systematized and pursued by trackers,
mainly uncivilized and ignorant people an all
other respects, all over the world . The matter
is therefore undoubtedly a science and the
opinion of a person especially skilled in it is a
relevant fact, under Sec- 45 of the Evidence
Act.”
The world now is heavily reliant on
science and so are the judiciaries around
the world. The Supreme court of India, in
Vasudeo Nandlal Badwaik v. Lata Nandlal
Badwaik embraced scientific evidence while
recognizing the admissibility of DNA evidence.
Despite Vasudeo Badwaik, Indian courts
still are unsure about admitting scientific
evidence if they are procured against the will
of the accused. In view of the Article 20(3) of
the constitution, the Supreme Court in Sharda
v. Dharmpal held that we can force no person
on his/her medical examination since no one
can be a witness against themselves. Further,
in Vasu v. Santha, the judgement prescribed
standards about when DNA tests can be
admitted, such as there must be a very strong
prima facie case, courts cannot order blood
test as a matter of course and no person can
be compelled to give blood for testing and no
adverse inference can be made against him/
her on his/her refusal. In a democracy, any
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citizen must practice such right against self-
incrimination, but it unfortunately resulted
in a lack of testing used in criminal cases. A
report by the Delhi Commission for Women
shoes that 53% of the rape cases reported are
false in the capital city which leads to several
misconvictions or at least ruins the social life
of the accused. Another study points out that
there are only 47 cases heard by the Supreme
Courts and other High Courts throughout the
year 2011 where DNA samples were useful and
that only 9.3% of the cases used DNA evidence
which involved identification of persons for
paternity tests. Section 166-A of the Indian
Penal Code, 1860, criminalizes inefficient
investigation and prosecution. Despite that,
investigation agencies are reluctant to dig
scientific evidence and forensic scientists are
occasionally not even aloud for many reasons
such as political pressure in the crime scene
due to which valuable evidence is destroyed
thereon. The Apex court has emphasized on
competent investigation several times. In
Amitbhai Anilchandra Shah v. Central Bureau
of Investigation, the Supreme Court stated:
“The investigating officers are the
kingpins in the criminal justice system. Their
reliable investigation is the leading step
towards affirming complete justice to the
victims of the case. Hence they are bestowed
with dual duties i.e. to investigate the matter
exhaustively and subsequently collect reliable
evidences (sic) to establish the same.”
Scientific evidence must be treated the
same
The Indian judiciary, like its American
counterpart, has been also rightly careful
with the admissibility of scientific evidence.
In regard of the gate-keeping role, Justice
Breyer in General Electric v. Joiner, urged
that where law and science intersect, great
care must be taken, and judges must exercise
this role (gate-keeping). In a Supreme court
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bench headed by (now C.J.) Justice Ramana
reiterated that scientific evidence should
not be granted precedence over substantive
evidence, while in State of U.P. v. Krishna Gopal
it was opined that courts must act freely while
deducing scientific evidence and give it the
weight that it deserves. Admitting any sort of
evidence without corroboration is unsound.
Professor McCormick, explains the concept
‘General Scientific Acceptance’ as an approach
to treat scientific evidence like any other.
The New York Supreme court also chose this
approach and held:
“If the evidence substantial probative
value probative value and is relevant to the
issue and does not endanger defendant’s
rights, or prejudice the jury, nor mislead the
proper administration of justice, then it should
be admitted as any other evidence.”
FORENSIC CONFORMATION BIAS
This phenomenon refers to a bias forensic
experts show towards their clients, or towards
a party involved in the case. This is necessary
to address because India is facing this trouble
and in further days when forensic science
flourishes, this concern will be greater.
Forensic Conformation Bias is the science of
subtle influencing, so a forensic expert finds
more evidence against a person who has been
told to be the accused/guilty. Several studies
have confirmed this. A study, for instance,
notices that the participants were told that
the speaker was suspected of a crime, the
participants perceived more statements in
the speech to be incriminating. Kassin, Dror &
Kukucka coined this concept which is defined
as “the class of effects through which the
individual’s pre-existing beliefs, expectations,
motives and situational context influence
the collection, perception, interpretation of
evidence during the course of a criminal case.”
Thus, evidence collected and examined with an
adversarial mindset creates and ‘investigative
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echo chamber’ where a piece of evidence
seems stronger than it actually is.
Conformation bias is a common incidence
and increases when goes unchecked because
the government’s Investigative authorities
control forensic laboratories. The police
maintain a monopoly over the scene of incident,
the evidence and the experts examining
such evidence, and therefore, the forensic
scientists abide by the requirements of the
party in the case which keep their services.
The prosecution, who usually dominates the
laboratories, want to win cases for which the
scientists are instructed to examine evidence
in a fashion that bolsters their case in the
court room. Forensic conformation bias is
a significant threat to an accused’s right
to liberty and life because at times expert
evidence may carry such weight that it can
land many innocents in jail. Allegiance of the
experts towards its client can be recognized
and rectified and just because judges are not
trained or sufficiently aware of methods used
in forensic science, we must not undermine
their legal expertise.
RECOMMENDATIONS
1. For Curing Forensic Conformation Bias
Biases must be deconstructed in the
courtroom while determining the evidence
beyond reasonable doubt, because forensic
experts may aim for neutrality, but their sole
purpose is to further the party’s case. The job
is to persuade and convince the court that
results of examination match the charges.
For instance, in R v. Tsekiri, Ms. Carr was
preparing to drive away in her car when a man
opened the door, pulled her out and escaped
after snatching her gold necklace. The victim
could not get a proper look at him, however
the DNA results after analyzing the door
handle of the car concluded defendant was
the single major contributor to the fingerprint

recorded and a minor chance of a secondary
transfer. Secondary transfer is the transfer
of one individual fingerprint by another
individual after a contact between the two (for
example, by handshake). Thus, on this only
available evidence, the trial judge convicted
him. On appeal, however, the conviction was
reversed as the appellate court observed that
admissibility of DNA evidence left on an object
would depend on the facts of each case such
as whether the defendant’s profile was more
likely caused by secondary or primary transfer
and a single piece of evidence can be admitted
conclusively only when it leaves no doubt. This
illustration shows that, at the trial stage itself,
the judges must objectively evaluate the facts
and not rely too often on scientific evidence.
Keshab Mahindra must again be discuss
where the accused related to the infamous
Bhopal gas tragedy were charged Sections
304, 326, 429, 324 read with 35 and section
309 of the Indian Penal Code by the Additional
Sessions Judge which was confirmed by the
High court of Madhya Pradesh as well. However,
the accused appealed to the Supreme Court
of India and after a meticulous corroboration
of the forensic report and other evidence, the
Apex court reversed the charges of culpable
homicide in case of the appellants 5, 6, 7, 8,
9, 10, & 11 showing legal expertise even when
there was ample material produced by the
prosecution to support the chargesheet. The
court also cited Niranjan Singh Karan Singh
Punjabi v. Jitendra Bhimraj Bijja & Ors, where
the Apex court observed:
"It seems well settled that at the Ss. 227-
228 stage i.e., stage of framing the charge, the
Court is required to evaluate the material and
documents on record with a view to finding out
if the facts emerging therefrom taken at their
face value disclose the existence of all the
ingredients constituting the alleged offence.
The Court may for this limited purpose sift
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the evidence as it cannot be expected even at
that initial stage to accept all that prosecution
states as gospel truth even if it is opposed to
common sense or the broad probabilities of
the case.”
Also in Williams v. Illinois, potential of
forensic conformation bias was recognized
by the Supreme Court of the U.S.A. where the
forensic department produced incriminating
evidence even before anyone was under
suspicion. The prosecution had no other
evidence other than the sound forensic report.
This observation by the court shows that
a defendant cannot be directly inculpated,
tormented, and put under psychological stress
by the forensic evidence solely.
The above examples depict the legal
expertise of the judges, but these do not lead
to an assured conclusion where everything
is alright. The best opportunity to assess the
evidence available to the judge is at the trial
stage and, in case the trial stage admits false
or bad expert evidence, innocence is bound to
suffer.
2. For Better Prosecution
As indicated above, there are a number
of obstacles which require to be cleared
regarding the key facets of criminal litigation,
such as the prosecution, education of the
legal professionals and the forensic science
laboratories themselves. There may be many
ways to correct such impediments, and a few
are being mentioned here. To start off, there
must be a code for the prosecutors to restrain
them from using expert evidence which they
perceive to be inaccurate or unreliable. A
counter argument would be that the decision
to eliminate unnecessary evidence is of the
judges, but, as noted before, a prosecutor is
not only a lawyer representing the state, but
it also has higher responsibilities and putting
forward good evidence should be one of them.
The National Accreditation Board
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for Testing and Calibration Laboratories
must initiate steps to assess the quality of
scientific evidence produced to bar courts
from admitting weak scientific proof with no
other piece of evidence to corroborate it with.
The need for quality control was honored by
the Supreme Court in Rajiv Gandhi v. State of
Bihar,[ (2015) SCC Online SC 1336.] where poor
analysis was conducted by inexperienced
scientists of a private lab in the disguise of
State Forensic Laboratory. In M.V. Mahesh v.
State of Karnataka, the Karnataka High Court
cautioned that if forensic report is poor, then
the benefit of doubt might get the accused
acquitted.
The Forensic experts must take up the
job of explaining the intricacies and error rate
of the methods and results produced to the
lawyers. Scientists use tough jargons while
explaining the relation between the scientific
outputs and the suspects which leave the
lawyers confused. Academic scientists try
to seek the truth and form theories about
scientific aspects to improve science.
Whereas a forensic scientist is trusted with
satisfying its client and thus has to form the
impression that the methods and techniques
practiced by them are the most reliable and
their conclusions trustworthy. That is why,
to support expert evidence based on good
science, forensic scientists must be able to
research without authoritative pressure and
no parties should involve in the scientific
process with vested interest and if they do,
they must answer.
For the above, there are a few
recommendations. Defense disclosure is the
most talked-about a solution which means to
disclose the expert evidence the prosecutor
has to the defense pre-trial. For instance,
the South African Law Reform Commission’s
Inquisitorial Report in 2002 included a draft bill
which places a duty on the defense to disclose
14 LEGAL NEWS & VIEWS JANUARY 2022
what defense would be used in the trial and the
prosecution must also disclose the evidence
clearly so that evidence can’t be used to
confuse the court or the other party. However,
in its fourteenth report, the Law Commission of
India rejected this proposal also predominant
in the United States and the United Kingdom.
Pre-trial disclosure can save plenty of time &
cost and provide speedy justice. Even experts
feel the pressure of the police which compel
them to be good witnesses rather than good
scientists. The prosecution has to be the
better lawyer because we expect honesty,
prudence and not just advocacy.
3. For Better Education and Accreditation
Forming code of ethics can serve a
purpose at developing the professional
community of forensic scientists as it can
create an environment where those ethics will
become the norm although most professionals
don’t turn to look at their codes of ethics. It can
also help in developing courses for forensic
science and recruit good candidates for the
Indian Forensic Services.
Norms can standardize education in
India which varies so much with language
and location. Standardizing terminology and
procedure of forensic reporting will also bring
uniformity. Also, certification of forensic
experts should be mandatory and any expert
who appears in court for testimony should be
properly certified and qualified to do so.
4. For Better Statutory and Legal System
There is a big scope for improvement
one can bring in, such as mandating formal
validation of the experts, their findings and
other aspects involved in the truth finding
process through science. Without such
validation, it has been established that the jury
gets confused and cannot evaluate rationally
the scientific evidence and this is true for
judges as well. Justice Nancy Gertner in the

judgement of United States v. Green, had to
admit a toolmark expert unwillingly in the
evidence who was not formally qualified nor
were his methods. The expert could not even
render a proper opinion and Justice Gertner
says:
“The standards should be higher than
were met in this case, and then have been
imposed across the country. The more courts
admit this type of [expert] evidence without
requiring documentation, proficiency testing,
or evidence of reliability, the sloppier practices
will endure; we should require more”
The Criminal Procedure Code must also
be amended to facilitate conservation of
case exhibits for a long term of at least four
years which will facilitate revisits to closed
cases when misconvictions are alleged. Rules
regarding physically carrying and transporting
sensitive digital evidence for the police should
also be made which handles such pieces
incorrectly quite often. It is also recommended
to set up a Forensic Science Council for
forensic scientists which will set-up ethics
and bring fraternity among the members of a
professional sphere. The Malimath Committee
also pointed out several grey areas such as lack
of forensic support is a difficulty investigating
officers face or that only about 5-6% of crimes
registered are referred to forensic bureaus.
VIEWS
The committee emphasizes on the United
States who have had great success with
forensic science and has 320 forensic labs
including the private sector while India is stuck
at only 23 Central Forensic Laboratories and
17 regional and thus, recommended setting up
forensic labs in each districts and these district
labs must not merely preserve and capture the
evidence, but also give opinions. Understaffed
condition of the bureaus is another concern,
and forensic science must be involved from the
commencement of investigation. Involvement
of science in criminal law becomes pretty
apparent from the above and given the falling
rate of convictions in India over the years,
forensic science will play a role in bringing that
up.
CONCLUSION
Forensic evidence in Indian criminal
cases has very less involvement and a lot of the
problems have been pointed out already. There
will be other difficulties when we actually start
exploiting the potential of forensic science.
This paper has tried capturing many of such
difficulties altogether but every problems
discussed here require their own research and
surveys which is the need of the hour. There
is not much indigenous scholarly research on
the problematic aspect of forensic science in
India. 
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