Report No. 185
Section 9 deals with 'Facts necessary to explain or introduce relevant facts'.
It reads as follows:
"Section 9: Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or persons whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."
There are six illustrations below section 9.
In the 69th Report, after an elaborate discussion, it was stated (see para 7.110) that no modification is necessary except that, in the opening claus.- after the word 'facts' and before the word 'necessary', we may add the words 'which are'.
After the 69th Report of 1977, there are indeed a large number of decisions of the Supreme Court which have relied upon section 9 for one or other of the purposes stated in section 9.
There is a mass of case law relating to identification parades. There is a Code of Practice D issued in England under the Police and Criminal Evidence Act, 1984 (see section 67(9)) but it has been held that identification in breach of it may not always be excluded, nor should identification under Code D be always accepted. There may also be cases outside Code D. Further the guidelines issued in R v. Turnbull 1977 QB 224 (CA) are treated asthe last word.
'Turnbull is the seminal decision and it is where the law isto be found' (R v. Mussell & Dalton: 1995 Cr. LR 887) (as per Evans J). Apart from that, in England, section 78 of the Police and Criminal Evidence Act, 1984, allows a Judge to exclude prosecution evidence in the interests of fairness and has been used to control, in particular, the manner in which subsequent identifications are obtained.
We do not propose to lay down any standards or precautions in regard to 'identification' but feel that the existing case law dealing with identification is quite elaborate (see Ramanathan v. State of TN: AIR 1978 SC 1204) and sufficient.
It is also the law in India that a direction to appear for identification or an order to obtain finger prints or impression of hand, feet etc. or taking of samples of blood are not treated as amounting to self incrimination under Article 20(3) of the Constitution of India (see State v. Kathikalu AIR 1961 SC 1808).
There are also examples of identification by photograph, videos etc. But section 22 of Terrorist and Disruptive Activities (Prevention) Act, 1985 was struck down by the Supreme Court in Kartar Singh v. State of Punjab 1994 Crl. LJ 3139 (SC) as being opposed to Article 21. That section referred to photographs of accused declared as proclaimed offenders and said that identification by witnesses using the said photographs shall have the same value as test identification.
Identification through video tape is permissible provided the video is clear and is of quality and depends on the time for which the accused is shown; but the weight to be given to the tape is for the Judge, who has also to look at the video. A case of "store security" camera video tape came up before the Canadian Supreme Court R v. Nikolovski (1996) 141. DLR.(4d) 647 and there, the above principles were laid down. Phipson says (1999, 15th Ed. para 14.24) that video and photo identification must satisfy the tests laid down in Turnbull 1977 QB 224.
Recently, in R v. Pieterson and Holloway (1995)(2) Cr. App R 11(1A), evidence that a 'tracker dog' had traced the scent of the place of crime to a particular individual, was held admissible subject to proof as to the training of the dog and other precautions. In Abdul Razak v. State AIR 1970 SC 283 it was held that it is not entitled to much weight. See also Ashok Gavade v. State of Goa 1995 Crl LJ 943 (Bom); Bhadron v. State of Kerala 1995 Crl LJ 679 (Ker); Pandian K Nadar v. State of Maharashtra 1993. Crl LJ 3883 (Bom).
In State v. S.J. Choudary: AIR 1996 SC 149, identification of typewriting by experts was relied upon.
(For discussion on DNA, see also our discussion under section 45 and section 112). DNA (Deoxyribo Nucleic Acid) evidence has been used for various types of identification. The science of DNA fingerprinting means the method of proving that a suspect's DNA matches a sample left at the scene of a crime.
It requires two things: (See http://www.howstuffworks.com/dna.evidence.htm)
(i) creating a DNA profile using molecular biology protocols
(ii) Crunching numbers and applying the principles of population genetics to prove a match mathematically .
Human beings have 23 pairs of chromosomes containing the DNA blueprint that decodes all the materials need to make up one's body as well as the instructions for how to run it. One member of each chromosome pair comes from one's mother and the other is contributed by the father. Every cell of the body contains a copy of this DNA. While the majority of DNA does not differ from human to human, some three million base pairs of DNA (about 0.10% of one entire genome) vary from person to person. The key to DNA evidence lies in comparing the DNA left at the scene of a crime with a suspect's DNA in these chromosomonal regions that do differ.
We do not propose to get into the molecular biology that lies behind DNA. But we shall refer to how it has been used. In 1985, DNA entered the court room for the first time. In 1988 for the first time, a person was sent to jail on the basis of DNA. This is a complex area of forensic science that relies heavily on statistical predictions. The basic procedure is to isolate the individual's DNA footprin.- called RFLP (Restriction fragment length polymorphism) analyses. This requires large amounts of relatively high quality DNA.
Several countries have DNA data bases of its citizens. DNA samples are used (a) To prove guilt: by matching DNA profiles and linking a suspect to a crime or crime scene. The British police have an online database of more than 700,000 profiles in 1999 that they compare to crime scene samples; more than 500 positive matches come up in a week; (b) Exoneration of innocent persons: At least 10% people have been freed from death row in US after DNA evidence has been studied.
DNA is useful for 'Paternity testing', "Identification', studying the evolution of human population; studying inherited disorders.
Matching is done at different loci. The new British ten-loci-test offers very little chance of a mismatch (Scotland's Every News 9.2.2000). When data bases grow in country or area, more loci are required to require support of a strong common source. The FBI is reported to test 13 loci which minimizes chances of mismatch. On this aspect, Phipson (2000, 15th Ed. para 14.32) says as follows:
"This evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match' then this will prove a lack of identity between the known person and the person from who the unknown sample originated. If the samples do 'match' this does not conclusively prove identity. Rather, an expert will be able to derive from a database of DNA samples an approximate number reflecting how often a similar DNA 'profile' or 'fingerprint' is found. It may be, for example, that the relevant profile is found in one person in every 100,000. This is described as the 'random occurrence ratio'.
Care must be taken in presenting such a statistic to the jury in a criminal case. In particular it is necessary to avoid "the prosecutor's fallacy": The statistic does not establish that there is only a 1 in 100,000 chance that the person has been wrongly identified (R v. Doheny & Adams (Gary) 1997(1) Cr. App. R. 369). The Court of Appeal has indicated that an expert shall usually confine his or her evidence to providing the random occurrence ratio, and, if he or she has the necessary data, may indicate how many people with matching DNA characteristics are likely to be found in the United Kingdom or in a limited relevant sub group which the perpetrator is, in all likelihood, a member of. It is inappropriate for an expert to expound a statistical approach to evaluating the likelihood that the accused left the unknown sample."
In England, section 62 of the Police and Criminal Evidence Act, 1984 governs obtaining 'intimate sample' (e.g. blood & fingerprint) from the suspect. If an accused refuses, then under section 62(10) it will be for the Court to decide what inference is to be drawn. Part III of the UK Family Law Reform Act, 1969 contains provisions for the use of blood tests in determining paternity. Again inferences may be drawn from a refusal to consent. (section 23 of Family Law Reform Act, 1969).
Section 62(10) of the Police and Criminal Evidence Act, 1984 states:
"62(10): Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause, in any proceedings against that person for an offenc.-
(a) the Court, in determining
(i) whether to commit that person for trial; or
(ii) whether there is a case to answer; and
(b) the Court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper; and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence against the person in relation to which the refusal is material."
In yet another case in R v. Adams (1996)(2) Cr. App. Rep. 467, the Court of Appeal was dealing with a case of alleged rape. The State contended that the DNA profiles from the appellant and the crime's scene sample were compared and a visual match within 1% was declared. Computer calculation indicated that the chance of a randomly chosen unrelated man matching the DNA profile was 1/297 m rounded down in the interests of 'conservation' to 200,000,000.
That calculation was based on 9 bands of DNA identified in the profile. The defence examined Prof. Donelly who referred to 'Bayes Theorem' relating to statistical probability. The trial court convicted the accused but there were other pleas and evidence on which the accused relied, including a plea of alibi. The Court of Appeal ordered retrial holding:
"The Bayes Theorem may be an appropriate and useful tool for statisticians and other experts seeking to establish a mathematical assessment of probability the theorem can only operate by giving to each separate piece of evidence a numerical percentage representing the ratio between probability of circumstance A and the probability of circumstance B, granted the existence of that evidence. The percentages chosen are matters of judgment; that is inevitable. But the apparently objective numerical figures used in the theorem may conceal the element of judgment on which it entirely depends.
More importantly for present purposes, however, whatever the merits or demerits of Bayes Theorem in mathematical or statistical assessment of probability, it seems to us that it is not appropriate for use in jury trials, as a means to assist the jury in the task. In the first place, the theorem's methodology requires, as we have described, that items of evidence be assessed separately according to their bearing on the accused's guilt, before being combined in the overall formula.
That in our view is far too rigid an approach to evidence of the type that a jury characteristically has to assess. More fundamental, however, the attempt to determine guilt or innocence on the basis of a mathematical formula, applied to each separate piece of evidence, is simply inappropriate to the Jury's task Scientific evidence tempered as proof of a particular fact may establish that fact to be an extent which, in any particular case, may vary between slight possibility and virtual certainty.
For example, different blood spots on an accused's clothing may, on testing, reveal a range of conclusions from 'human blood' to 'highly likely to be the victim's blood'. Such evidence is susceptible to challenge as to methodology and otherwise, which may weaken or even, in some cases, strengthen the impact of the evidence. But we have never heard it suggested that a jury should consider the relationship between such scientific evidence and other evidence by reference to probability formulas different jurors might well wish to select different numerical figures."
The court observed:
"Quite apart from these general objections, as the present case graphically demonstrates, to introduce Bayes Theorem, or any similar method, into a criminal trial plunges the jury into inappropriate and unnecessary realms of theory and complexity deflecting them from their proper task."
In 1995, Crl. L. Review (p. 464), in an article 'Doubts and Burdens: DNA Evidence probability and the Courts' by Mike Redmayne, the author says: (p. 466)
"The first stage in the interpretation of DNA profiles is the declaration of a match. If two profiles that are compared, do not match, then the suspect can be eliminated from the investigation."
Keith Inman, co-author with Norah Rudom of the recently published 'An introduction to forensic DNA Analysis' (CRC Press 1997) and 'Principles and Practice of Criminalistics (CRC Press) (see http://www.forensicevidence.com/___/EVID/ELDNA error.html) say that a 'match' is nothing more than probable cause to look at the individual where DNA has been matched to a sample in the database more closely, not the definite and final disposition of his future in the Criminal Justice System.
In U.S., in a recent case of Crawford v. Commonwealth (Record No.0683-99-1), the Court of Appeal of Virginia held (on 19.9.2000) that instructing the Jury that DNA testing is deemed reliable scientific technique and thus recognized under the laws of Virginia was improper when DNA evidence was used to prove a person'sidentity. In that case, the defendant's DNA was obtained and compared with the DNA extracted from the seminal stain on the rape victim's clothing. Both samples matched.
The forensic scientist conducted a PCR (polymerase chain reaction) analysis and found that the DNA had been typed in six different systems and that defendant's DNA was consistent with that extracted from the victim's clothing. She said that the possibility of all six systems being found to match with a randomly selected African-American males was one in 970. She also said that if DNA of both samples had not been matched in any of the six systems, then that would positively exclude the defendant. The Jury convicted the defendant. The court reversed the conviction since the instruction to Jury that DNA was reliable was not proper inasmuch as it singled out one part of the evidence.
In Virginia, Code 19.2-270.5 stated that "in any criminal proceeding, DNA.... testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparisons maybe admitted to prove or disprove the identity of a person." Even so, the court set aside conviction based on an instruction to jury giving special importance to DNA. DNA test is admissible but court cannot comment on reliability while instructing the Jury, it was held.
The American Civil Liberation Union declared that DNA cannot be equated with 'fingerprinting'. In O.J. Simpson's case, the legal team resorted to DNA and created a doubt in the minds of the judges. Thus, while DNA, when it helps exclusions, does not infringe liberty; to rely on DNA for conviction, is not proper. The 1998 National Commission on DNA referred to the questionable assumptions in DNA.
Australia: The position in Australia is revealed from the recent Report of the Australian Law Reform Commission. (Issues Paper 26. Protection of Human Genetic Informatio.- 14. Evidence issues.) The Report is elaborate and refers to the case law in Australia and statutory position as also the law in England. It deals with relevance of DNA in (a) criminal proceedings, (b) civil proceedings, (c) accuracy and reliability of DNA, (d) inter-jurisdictional aspects, (e) privacy concerns, (f) equality of access to DNA, (g) ethical concerns and (h) regulation of access to paternity testing.
It says that the prosecution or the defence may introduce DNA evidence. In para 14.4, it accepts that:
"The defence may seek to rely on DNA evidence to eliminate the defendant from suspicion, where the evidence establishes that the DNA sample taken from him does not match the sample taken from the crime scene or found on the victim."
So far, there appears to be no difficulty. But the Report then discusses about situations where the DNA samples match, the extent of probability of the identity and whether evidence of experts should be admitted on the question of probability, based on the DNA data available in the particular country.
This latter aspect is still quite complicated and we feel that where the DNA samples match, it is not necessary to make any provision at all at this stage of scientific development.
But, so far as cases where the DNA samples do not match, it is now fairly accepted that the identity is not proved.
The US Federal Government is currently preparing new legislation to expand DNA fingerprinting at the national level. However, the Commission on Future DNA Evidence suggested that using DNA matching, convicts could be released in cases of mismatch. In New York and Illinois, appeals with delay by convicts are being allowed.
More recently, our Supreme Court of India, in Kamti Devi v. Poshi Ram 2001(5)SCC 311 = AIR 2001 SC 2226 refused to rely on the result of a DNA test and held that under section 112 of the Evidence Act non- access between the man and woman is the only way to raise the presumption against legitimacy. This is a case where the DNA result was not given any weight.
It is, therefore, fairly established that if the DNA result does not match, then the identity of the person is not established. But, the contrary is not true. Where the test result is that the DNA does not match, it cannot lead to a conclusion of identity of the person.
Regarding the refusal of a person to undergo blood tests or a DNA test in criminal cases, we do not again think that any special provision is to be made in section 9 of the Evidence Act, 1872. The Courts can, in criminal or civil cases, always rely upon a person's conduct under section 9 and no special provision is necessary in section 9 of the Evidence Act.
We have however recommended that so far as refusal by a man for undergoing blood tests or DNA test, for purposes of proving paternity, is concerned, that he should be deemed as having waived his defence that he is not the father (see section 112).
For the reasons given in Phipson on Evidence (2000, 15th Edn.), we think that it is not possible to make the result of polygraph or lie detector test admissible under section 9 of the Evidence Act. Phipson (para 37.13) deals with this aspect specifically.
Thus, the only amendment we suggest in section 9 is the following. In the opening part, after the word "Facts" and before the word "necessary", insert the words "which are".