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JPAFMAT 2007; 7(1).

ISSN 0972-5687

MEDICAL WITNESS & THE INDIAN COURTS

Dr. A.D.Aggarwal, Assistant Professor, Forensic Medicine, M.M. Medical College, Mullana, Ambala
Dr. Harnam Singh, Assistant Professor, Forensic Medicine, M.M. Medical College, Mullana, Ambala
Dr. R.K.Gorea, Professor & Head, Forensic Medicine, Gian Sagar Medical College, Ram Nagar, Banur

Abstract

In our practice it has been seen that the doctors are generally afraid to testify in the courts. This is
mainly because of two reasons: one that they are not familiar of the legal procedures and two because
they are afraid to be grilled in the court by the lawyers. As a result many a times the attitude of the
doctor while testifying in the court is to finish the testimony and go back, irrespective of the outcome.
The beneficiaries in such cases are the culprits who have to be acquitted because of lack of evidence. As
a result the knowledge, skill, education, experience and training of the doctors are necessary to make
them more competent while testifying in the court.

Key words: Medical Witness, Court, Legal System

Introduction questioning of witnesses. The adversarial
system being followed in India is based on the
Medical evidence is routinely required for philosophy that the true facts of a given
administration of justice all over the world. As situation, and hence justice, will emerge if the
an expert witness, the doctor can be thrust,
parties to a court action act as adversaries
often unwillingly, into a foreign environment rather than cooperative participants. Each side
where the flow of information is tightly vigorously advances its own version of the facts,
controlled by complex rules of evidence which an impartial third person or group of persons
have been shaped by various laws with which
(judges) will sift out the truth.
the expert witness cannot expect to be familiar.
It is a common perception among Indian Since the jury were thought to be influenced by
medical professionals that lot of time and effort media and public support for the parties and is
is required for expert testimony in the court of also open to being misled, the Indian
law in our country. Thereby, large numbers of government abolished jury trials after the case
professionals avoid sharing medicolegal K.M.Nanavati vs. State of Maharashtra in 1959.
responsibilities.
The presiding officer or the judge sits in his
The legal system chair at a higher platform; besides him on his
sides at a lower level were the reader and the
The two dominant legal systems in the world clerk. The court staff includes head clerk
are often referred to as the adversarial and (mukhya sahik), administrative clerk (nazir),
inquisitorial systems. The objective is just readers (peshkars), stenographers (stenos),
resolution of disputes and maintenance of record keepers (almads) and orderlies (peons).
social order. In the inquisitorial system the Clients (muakkils) are present with their lawyer
court and the judiciary plays a proactive part
(vakil) accompanied by his scribe (munshi) in
and is involved in the examination and the courts (kacheri). [1]

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by the Central and signs at the bottom of each page. An expert however. is permitted to offer his After receiving summons or subpoena [3] the opinion as evidence. s. Court questions (questions by judge. evidence is material judge. expert witness must appear before the court at the appointed time with the relevant Typically. and initials any corrections (s. 137 Indian Criminal Procedure 1973 Section 293 (4) are Evidence Act) 3. ISSN 0972-5687 The Supreme Court of India is the highest Expert Witness judicial tribunal of the country. no Government Scientific Experts as per Code of leading questions allowed. witnesses may Presentation of evidence only give evidence of fact and not an opinion. Examination-in-chief (direct examination. s. it refers to data obtained through 21 . inconsistency or any factors which expert witness is to support the proper may make the evidence appear unreliable. Oath (s. s. These are the courts of appeal. The recorded deposition of witness is handed g) any other Government scientific expert over to him. and on Government the last page immediately below the last paragraph. rely upon his opinion. s. There are also believed to have special knowledge of his special courts like Juvenile Courts and Fast Track subject beyond that of the average person. Deputy Director. who helps the court in forming opinion on are the highest judicial tribunal for the states. It has power of supervision over all courts and the law declared An expert witness is defined as a person by it. An expert witness. etc. 165 d) Director Haffkeine Institute Bombay Indian Evidence Act. JPAFMAT 2007. Re-examination (Re-direct examination. 1. 45). experts are relied on by both sides to documents. or testimony which is admissible to the court. administration of justice and the early Evidence is presented in a systematic order. 311 Criminal e) Director. which he carefully goes through. [2] The High Courts especially skilled in foreign law. The objective of the uncertainty. Assistant Director of central or state FSL Procedure Code) f) Serologist to Govt. In medicine. (Indian Evidence Act 1872 section are the highest judicial tribunal of the districts. The witness shall not The term evidence has different meanings in leave the court without the permission of the law and medicine. by virtue of education. These can pass any sentence. The evidence is probed for areas of a dispute for opinions. is are the Magistrate Courts. 278 Expert medical evidence Criminal Procedure Code). sufficient that others may officially and legally Courts. s. 7(1). In general. resolution of dispute through fair and unbiased expert evidence. is binding on all courts. 141-146 Indian Evidence Act) Examiner 4. publication or experience. Sessions Courts that point. In law. specified by notification. b) Chief Controller of Explosives c) Director of Finger Print Bureau 138 Indian Evidence Act) 5. The lower courts profession. 51 Indian Penal Code) 2. Cross-examination (leading questions a) Chemical Examiner or Assistant Chemical permitted. science or art.

[10] The Frye test [11] probability of being the truth. dying proceeding. 22 . ISSN 0972-5687 scientific investigation. compos mentis. most medical practitioners. evidence and this may result in an incomplete or distorted version of the truth as they see it. When evidence has already been admitted expert witness in a lower court. ii. Critics point out that judges with limited [7] These rules aim to exclude evidence which medical knowledge may not be the most may be unreliable. age. Evidence given in a previous judicial contrary to popular expert opinion on issues like bone cut. ordinarily medical evidence in admitted only describing how he was able to reach at the when the expert gives oral evidence under oath opinion using any documents. There are several areas of medicine confusing and unrewarding experience. in the particular field to which it belongs. The medical witness provide evidence regarding matters of ‘common may find the process an intensely frustrating. iv. [9] evidence that may be presented to the court. the area must be sufficiently Medical evidence helps the courts to draw established to have gained general acceptance logical conclusions from the facts presented. and declaration.6] In law. rape. rule on whether an area of scientific or medical [4. Expert opinions expressed in a treatise. books. In India. Expert witnesses An expert need not be asked to number the may only be permitted to present part of their fingers on the hand. [13] experience. Experts may not within the field of inquiry. It is left to the judiciary to methodology employed in the investigation. circumstances like: Limitations and problems of evidence from the i. birth/death certificates etc. rules that in order to be classified as an area of expertise. consent. 7(1). Hospital records like admission/discharge delivered. The expert witness is often expected to provide Judges are assumed to possess knowledge and clear ‘yes or no’ unambiguous answers to experience of general fields of human questions where there is profound uncertainty endeavour and experience.5. photos in the courts of law expect under special etc. have been v. irrelevant or misleading and appropriate ‘gate keepers’ of scientific evidence include evidence which has the maximum in relation to the court. [12] The evidence presented by medical experts is The Daubert ruling has further specified the based on their opinions derived by their criteria to determine the admissibility of specialized skills acquired by study and scientific evidence. register. complex rules restrict the type of knowledge represents an area of expertise.JPAFMAT 2007. opinion on the basis of facts using his expertise. knowledge’. which intersect with day to day life and This approach to problem solving is alien to therefore invoke the common knowledge rule. [8] Medical experts are routinely involved in the administration of justice The expert must be able to clearly justify his particularly in criminal courts. The quality of such The expert witness may only testify within his or evidence is defined by the scientific her area of expertise. burns. etc. There are many instances where court decisions iii. Expert cannot be called as witness.

issue of summon by mistake. undergraduates and the postgraduates in a Opposing medical expert witnesses may have specific subject. This sort of medicolegal cases. There is ongoing judicial anxiety about the There is a natural bias to do something partisanship of forensic witnesses. 2. seemingly simple terms which are defined by adjournment of the case before arrival of various laws of which the majority of expert medical witness. Partisan selection of expert more than two years. The pressure of the adversary system often [18] forces the experts to the limits of his expertise. [17] witnesses maximizes potential for bias and Initiatives required on resolving the issues inaccurate expert testimony. serviceable for those who employ you and adequately remunerate you. this is not the case. let alone adjournments. which may be sensitive to these issues. The rules of overall more time is taken in waiting in courts evidence limit what the expert witness may say. and the courts should be minor points of disagreement. JPAFMAT 2007. and lack of work culture. etc. [15] worldwide have issued professional guidelines for medical expert witnesses. repeated whom would be rarely challenged. on satisfaction ‘beyond reasonable doubt’ that the legal elements of a crime have been Especially for medical expert witnesses there is always a difference between the expertise of established. it is a common perception that lot of Cross-examination by its nature usually involves time and effort is required to record evidence direct challenge of the witness and may at times and therefore by and large members of the be quite an aggressive process with direct medical profession do not like to be involved in personal attack not uncommon. some of undue time consumption. 23 . In India. Expert evidence should be subjected to Often the litigants’ case becomes the expert’s peer review. and receiving payment than in actual recording [14] of evidence. with the 1. The mean lag period between Expert witnesses are often chosen and retained registration of first information report and time on the basis of what they will say and how they to appear before court of law to give evidence will say it rather than on any scientific or by a medical witness has been found to be professional merit. ISSN 0972-5687 This system is not based on a concept of cause. [16] Some of the possible combative approach to problem solving is reasons put forward for this perception are obviously foreign to most doctors. and the opinion should construed as major differences of opinion when be given due weight-age and respect. availability of presiding officer in the court. It has been observed that witnesses will be unaware. Experts may feel like they themselves are ‘absolute truth’ in a scientific sense but rather on trial. Some attacked. in the course of their professional of the reasons for delays in evidence are non- lives. Several medical organizations and courts consequence of being paid agents. 7(1). non-availability of some documents. work suspended An expert witness may be confronted with by lawyers.

summary of the conclusions. hows and the procedures of the read and sign a ‘witness code of conduct’ court. [19] decrease the quality of the evidence in Statutes need to be amended so that the eyes of the judges. declaration of truth. A medical witness called in as an report are within the expert's own expert to assist the court is not a witness of fact knowledge. details of literature or other information should be treated with due respect. Expert witnesses should be required to whys. including photos. name and qualifications of the person an advisory character given on the basis of the who carried out any examination or tests signs and symptoms found on examination. videos and radiographs. a definite opinion with a supporting and complies to his duty to the court. relevant experience and accreditation. Expert opinion should be considered in the be expected. If the witness becomes same light as clinical medicine and as such angry or argumentative it can only subject to same rules of negligence. breaches of the expert’s duty of objectivity 10. evidence and aggressive challenge should 5. ISSN 0972-5687 3. 7(1). and basis should be provided. The medical expert witness must which is tallying with the eyewitness understand that cross-examination is a account and discard the opinion of other method for testing the quality of their expert on this ground alone. c. The used. The experts are the guests of the court and b. and the evidence given by the doctor is really of e. details of the expert's qualifications. statement that the facts stated in the by the courts. in case of any h. statement that the expert understands report. referred opinion cases. g. There is a need for the accreditation of accept the others. Prior education and training of the expert would constitute professional misconduct. The presence of trainees in the court accountable for their conduct during court should be acceptable to the judiciary. which the expert has relied on. reasons if no definite opinion has been 4. With the emergence of private sector the regard to impartiality and minimum focus of the laws on ‘government experts’ requirements for medicolegal reports. Medical expert opinion is commonly required d. [20] outlining general principles with 11. An expert's report and the further evidence expert monetarily will be highly must give instrumental in reducing some natural bias a.JPAFMAT 2007. [21] should be shifted to accommodate and 7. expert witness is expected to put before the 24 . Further the j. due to this issue. and substantial documentary evidence reasons for the opinion. difference of opinion from the initial i. expert witnesses and making them 12. 14. witnesses assists in understanding the 6. statement of all facts upon which those Conclusion opinions are based. summary of the range of opinion. appearance. Medical evidence should be supported by f. courts may believe and rely on that opinion 9. Even in cases of re-examination and reached. An adequate and just compensation of the 8. 13.

Samuels G. c. Therefore. Emerg. ISSN 0972-5687 court all materials inclusive of the data which The medical expert witness should be aware induced him to come to the conclusion and that what they may say in court is tightly enlighten the court on the technical aspects of controlled by complex rules of evidence. [22] 2. wary of interaction with encouraged to undertake medicolegal work and the legal system. Discouraging routine summoning of 1972. may think that the risk to simultaneously the atmosphere in courts should reputation is too great and may be reluctant to be congenial to the medical witness. [24] experts opinion is accepted. Aust. Hitchcock T. Expert Witness Testimony: e. Criminal Procedure Code of India 1973. Principles of Evidence. a. since if good experts avoid court The current practice of soliciting expert medical attendance. procedures to have admissibility of the Med. Amending provision of criminal 5. Medical truth and legal proof. time. there is a need to address the conspiring to maximize bias. apprehensions that ponder the mind of medical professionals. Med. Avalon Sydney: Cavendish Publishing. Neurol. Recording of experts’ testimony through An Update. JPAFMAT 2007. Morrison C. Clin. the case. Recording experts’ testimony by 4. evidence. b. Palmer A. Constitution of India. J. This attains help. expertise and the alternative judicial officer in case of non. plays a crucial role in helping the courts of law Doctors will continue to find themselves in this to arrive at logical conclusions. However.13:104 d. this important 1. 1998 25 . Munshis and Their Masters: aspect of the justice administration can be The Organization of an Occupational Relationship in the Indian Legal System. less objective professional will fill testimony within the adversarial system the gap. Weintraub MI. Evidence. The conditions for the expert medical witness in courts is satisfactory which is quite in contrast References to the apprehensions prevalent in the minds of medical professionals. Article 134. ultimately affecting the justice.31(2):309-328. the often alien and unfamiliar arena. [25] appears flawed and contains inherent pressures Thus.17:363 video-conferencing. doctors. emergency physician: doctors should availability of the presiding officer the anticipate legal reform in their expert court that summoned him. 1999. further improved by the following measures: The Journal of Asian Studies. Those willing to help may also be utmost importance looking at the outcome of unnecessarily circumspect in their evidence. [23] 7. Members of expert medical professionals should be the medical profession. 2001. Calling expert witness at pre-scheduled 3. 7(1).168:84 medical records 6. An the case by explaining the terms of science so understanding of the system’s fundamental that the court although not expert may form its flaws may enable the expert witness to own judgment on those materials after giving recognize when evidence is distorted and due regard to the experts opinion because once appeal to the judiciary accordingly. it is not the opinion There is a unanimity that medical evidence of the doctor but of the court. Sections 61 – 69. 1998.

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