JAMIA MILLIA ISLAMIA

NEW DELHI

ASSIGNMENT OF FORENSIC SCIENCE AND LAW

TOPIC- COMPARATIVE ANALYSIS OF ADMISSIBLITY OF FORENSIC
EVIDENCE IN INDIA, USA AND ENGLAND

SUBMITTED TO – PROF. SHABANA SHABNAM

SUBMITTED BY – SALEEM AHAMAD
LL.M

2ND SEMESTER (REGULAR)

Table of Contents

Acknowledgement…………………………………………………...3
Introduction………………………………………………………….5
Comparative Analysis of Admissibility of Forensic
Evidence……………...……….……..……………………………….7

India……………………………………………………………7

USA…………………………………………………………...10

United Kingdom……………………………………………..12

Conclusion………………………………………………………….15

Bibliography………………………………………………………..17
 Acknowledgement

It feels great pleasure in submitting this research project to Prof. Shabana Shabnam without
whose guidance this project would not have been completed successfully. Next, I would
like to sincerely thank my seniors, whose suggestions and guidance assisted me
throughout the entire tenure of making the project. Last but not the least, I would like
to express my heartfelt gratitude towards my friends who guided me and helped me at
every possible step.

Saleem Ahamad

LL.M (Regular)

2nd Semester
Objective of the study
The objective of the present study is to examine and understand the admissibility of forensic
evidence during a criminal trial under the Criminal laws also considering the scenario as laid
down in landmark judgements.

Hypothesis
The hypothesis of the present research is that the forensic evidence are need of the hour
concerning changing nature of offences and their commission.

Forensic Science can be defined as that scientific discipline which is directed to the recognition,
identification, individualization and evaluation of physical evidence by the application of the
principles and methods of natural sciences for the purpose of administration of criminal justice.

Research methodology
This study has used a blend of doctrinal as well as analytical form of research and writing.
 Introduction
It has been evident from the experiences that successful criminal investigation is practically
impossible by the traditional method of eye-witness oriented criminal justice system. This
method of criminal investigation lowers the quality of criminal justice system. It becomes
difficult for the judges to decide a criminal matter or corroborate the fact-in-issue only on the
sole basis of evidence of witnesses who might lie or are not dependable because witnesses fail
to appear on the dates fixed by the courts or might not be subject to the process of the court,
which delays justice.

Nowadays witnesses refuse to come and appear before the court in spite of knowing the truth
or witnessing the truth because of fear of becoming preys to criminals or threats which many a
time are life taking. Many a time offence are committed in such a condition or situation where
it is impossible even to get a single witness. In such cases the decision-making process of
criminal cases totally depends on circumstantial evidence like DNA evidence, report of the
ballistic expert, fingerprints or report of chemical examination.

Due to lack of evidence or lack of proper evidence most of the heinous criminals are acquitted
or goes scoot free on a basis of even slightest doubt. Moreover the prosecution spends huge
amount of money on the trials of criminal cases. Therefore through conventional investigations
mostly public money is wasted and criminals get acquittal on the basis of benefit of doubt.

Crimes are now committed in a technical way, even technical crimes have emerged which can
be investigated only through the use of forensic science. As for example cyber crime, to
investigate a cyber crime cyber forensics has to be used. Classification of crimes has also
changed from traditional to technical. The definitions of criminals also changed since the
criminals are now technological. Conventional crimes are also committed in a scientific way
through computers in which case no option is left except to use cyber forensic. Intelligent
criminals started exploiting science for their criminal acts, whereas investigators are unable to
rely on the age-old art of interrogation, development of sources and surveillance to detect
crime. Therefore the criminal justice system cannot suffice without the aid of forensic science
or new technology.

The development of Forensic Science has provided an important tool in the hands of the
enforcement agencies and the judiciary. A scientific investigation of crime and the justice
delivery system, with the aid of forensic science efficiently and effortlessly establishes the
criminal charge against an accused with much accuracy. Scientific investigation of crime with
the aid of forensic science has been accepted all over the world and successful criminal
investigation can be done with the help of forensic science. The pillar of a criminal case entirely
lies on criminal investigation.

Scientific investigation with the help of forensic science is much more powerful, reliable and
fruitful than eye witness oriented criminal justice system. A victim cannot be left at the mercy
of the eye witnesses. The branches of forensic science like DNA, ballistics, fingerprinting, etc.
are much reliable than the examination of ordinary witnesses in the criminal justice system.

A crime scene is rich in information that speaks the nature of the criminal activity and the
identities of those persons involved. Perpetrators and victims may leave behind blood, saliva,
skin cells, hair, fingerprints, footprints, clothing fibers, digital and photographic images, audio
data, handwriting, and the residual effects and debris of arson, gunshots, and unlawful entry. 1
Useful evidence cannot be gathered without the aid of scientific analysis. Without the use of
science, it is not possible to convict criminals , ranging from common theft to a homicidal
rampage, unless there was an eyewitness present at the crime scene when the crime occurred.
Murderers would continue killing, thieves would continue stealing, and drug traffickers would
continue dealing. Fortunately, in today's world, science is used in solving crimes 2 . The element
of anonymity and lack of territorial borders in cyberspace makes internet an attractive medium
for criminals to commit crimes. Not only the conventional crimes are committed through
computers but also new forms of crime have emerged such as hacking, trojan, phishing attacks
etc3. Therefore, forensic science and its use have become indispensable for purpose of
investigations.

1
In The Spotlight, available at: https://www.ncjrs.gov/spotlight/forensic/summary.html (Last visited on May
20, 2022)
2
The Imporatnce of Forensic Science in Criminal Investigation, available at:
http://www.criminalistica.com.mx/areas-forenses/criminalistica (Last visited on May 20, 2022)
3
Karnika Seth, Computers Internet and New Technology Laws 333 (LexisNexis Butterworths Wadhwa, Nagpur,
1st edn., 2012)
 Comparative Analysis of Admissibility of
Forensic Evidence
INDIA
The law of evidence has always been guided by the rule of “best evidence” which is considered
to be basic criterion which is avoidance of hearsay and production of primary evidence. These
rules are believed to weed out infirm evidence and produce and produce only that which cannot
be reasonably be doubted. In scheme of Indian Evidence Act , 1872 , only a person who has
himself perceived the fact being proved can depose with respect to it ,and not someone who
has received the information second hand. Similarly, where a document is used to prove a fact,
the original should be produced in court. Application of science and technology for the
detection and investigation of crime and admissibility of justice is not new to India.

The term ‘evidence’ is defined under Section 3 of Indian Evidence Act, 1872 which mean and
include an oral and documentary evidence. There are various kinds of evidence under the law,
the most important being the ‘material evidence’. It is involved as a part of crime and is usually
recovered from the crime scene or from a place where the accused or victim has been present
either before or after the commission of crime. Blood, hair, semen, fingerprints, shoeprint etc.
are all real evidence. There are many evidences which are used in a criminal trial including
forensic evidence. These evidences are important in proving a case as they are based on the
knowledge that has been developed by using scientific method. Many types of evidence are
considered as scientific evidence such as DNA fingerprinting, fingerprint identification, hair
analysis etc.

Section 45 to Section 51 of the Indian Evidence Act, 1872 deals with relevancy of expert’s
opinion in a case. As per the Act, an evidence may be given of only those facts which are
personally known to a witness. However, these provisions are exceptional in nature to the
general rule. It is based on the principle that the court cannot form an opinion or come to a
conclusion on a matter which is technically complicated and sophisticated, without the help
and assistance from a person who possess special skill and knowledge on that matter. Such
persons who have special knowledge and skill in the said area is called an ‘Expert’. Medical,
chemical, explosive, ballistic, fingerprint analysts are some of the examples of forensic experts.
The judges do not usually have special scientific knowledge and accordingly they are not
expected to form independent opinion on matters of science, including the social sciences,
involving complex quantitative and qualitative analyses. For that reason, the courts make use
of experts who, due to their knowledge or training, can provide explanations which may be
relied upon in decision making.

The expert evidence and the challenges it poses in the decision making by the courts is been
discussed nationally and internationally for so many decades that it has become a ‘talk of the
town’ pertaining to the issue of admissibility of expert evidence.

The expert witness’s evidence should fulfil the following requirements:

 the witness must be an expert;

 the expert statements or reports must meet the minimum standards of reliability;
 the expert statements must be relevant and of probative value;
 the content of the expert statements falls within the accepted expertise of the expert
witness.

However, scientific evidence has to some extent proved to be problematic for judges and
lawyers as both these authorities have little or no training in science and technology. Courts
while entertaining scientific evidence face the difficulty in choosing the veracity of scientific
explanation which is tendered by the expert witness. In order to solve this difficulty and to
reduce the delay and expenses involved in getting expert opinion, examination of certain
experts have been dispensed under the law.

As per Section 293(2) of Criminal Procedure Code, 1973 – The Court may, if it thinks fit,
summon and examine any expert as to the subject-matter of his report, namely –

 Any Chemical Examiner / Asst. Chemical examiner to the Government,

 The Chief Controller of explosives,
 The Director of Fingerprint Bureau,
 The Director of Haffkein Institute, Bombay,
 The Director, Dy. Director or Asst. Director of Central and State Forensic Science
Laboratory,
 The Serologist to the Government,
 Any other Scientific Experts as specified by notification of the Central Govt.
The abovementioned reports which are executed by any of the abovementioned government
scientific experts is admissible as evidence in any inquiry, trial or proceeding. However, he
may be exempted by the court from personal appearance as an expert witness unless the court
deems fit and proper to call him for testifying the material facts.

In India, the precedent followed by the courts in the case of admissibility of forensic evidence
is that the court may normally require corroboration as a rule of caution. The judicial precedents
in India confirm that the requirements of corroboration play a vital role in the determination
and admissibility of forensic evidence. The standard of corroboration followed by the Indian
courts can be considered as an effective check against the acting on forensic evidence in to the
criminal trial system.4

The trial courts decide the issue of admissibility of forensic expert evidence based on its
relevancy. The principles of admissibility in Indian courts are that evidence can be given only
of relevant facts and facts in issue. A fact may be relevant but not admissible, like in case of
documentary evidence, only under certain circumstances secondary evidence of a document
can be produced. If it is not in accordance of the legislative provision as envisaged under Indian
Evidence Act, 1872, despite the fact that a document might be relevant but it would not be
admissible. Therefore in India, the principle for accepting forensic evidence is relevant and
admissible under the broad rules of reliability, helpfulness to the trier of a fact, fitness etc. 5

In case of Magan Bhiarilal v. State of Punjab6 Supreme Court struck down and set aside the
conviction confirmed by the Punjab and Haryana High court on the basis of uncorroborated
testimony of the handwriting expert.

It this case the Supreme Court in Forest Range Officer v. P. Mohhamad Ali7 while determining
the probative value of scientific expert evidence it is clear that it assists the Court in reaching
a particular conclusion where technical assistance is necessary. But it does not help the Court
in interpretation. The law is well settled and it is a general rule accepted by the Courts that
expert’s opinion if corroborated, can be relied upon. 8

4
State of Maharashtra v. Sukhdeo Singh AIR 1992 SC 2100.
5
Supra note 10 at p.42.
6
AIR 1977 SC 1091.
7
AIR 1994 SC 120.
8
Palania Pillai v. State, 1991 Cri LJ 1563.
USA
A revolution has taken place in the last decade for the admissibility of scientific evidence in
federal courts . Frye v. United States9 was the first important judgment in America regarding
the admissibility of scientific evidence. The Frye test had two aspects. Firstly, the principle or
scientific technique and secondly, the acceptance. The aspects of the test were criticized on two
different grounds.

i) That there will have to be a considerable time lag for the scientific method to be
accepted by the community
ii) More faith is reposed on the scientific community than in the Court of Law.

Therefore, the Federal Rules Of Evidence were enacted in 1975. Rule 702, stated that “If
scientific, technical or other specialized knowledge will assist the trier of fact to understand the
forensic evidence or to determine a fact in issue, a witness qualified as an expert in terms of
knowledge, skill, experience, training or education may testify thereto in the form of an opinion
or otherwise.

But this enactment did not settle the dispute considering forensic evidence as it neither included
the Frye standard nor made a mention of the general acceptance standard. So, the United States
Supreme Court laid down the guidelines in the remarkable judgment of Daubert v. Merell Dow
10
Pharmaceuticals, Inc . The court concluded by saying that the Federal Rules of Evidence
superseded the Frye Rule and that the rigid general acceptance rule should not conquer the way
of a reasonable minority scientific opinion in the form of new and emerging research based on
reliable studies. It also laid down factors for the basis of scientific evidence which are also
known as The Daubert Guidelines.

The Guidelines are as follows:

 The content of the scientific testimony which has already been tested, can be tested
using the scientific method;
 The technique has been subject to peer review, preferably in the form of publication
in peer review literature;
 There are consistently and reliably applied professional standards and known or
potential error rates for the technique.

9
Frye v. United States 293 F.1013 (D.C. Cir. 1923)
10
Daubert v. Merell Dow Pharmaceuticals, Inc 509 U.S. 579 (1993)
  Consideration of general acceptance within the scientific community.

Later the Kumho Tire Case11, expanded the Daubert Analysis, to technical and specialized
subjects that avoid the category of “science” After the framing of daubert guidelines, the
Federal Rules Of Evidence were then amended in the year 2000.

The Rule 702 now provides: that scientific, technical or specialized evidence may be admitted
if:

a) the expert is qualified;

b) the expert’s testimony will help the jury decide issues in the case or understand the
evidence; and
c) the expert’s testimony is based on sufficient facts or data; is the product of reliable
methods and principles, and if the expert reliably has applied the methods and
principles to the facts of the case in trial.

As a result of this revolution, trial judges are now required to perform function such as so-
called “gatekeepers” to determine whether expert testimony will be allowed to be heard by the
jury in civil and criminal trials before it helps the jury to decide issues in the case or understand
the evidence according to Rule 702 of Federal Rules Of Evidence.

In the Joiner Case12 which discussed about the admissibility of scientific evidence, Associate
Justice Stephen Breyer, has offered the following observation on the role of science in court
cases: “In this age of science, science should expect to find a warm welcome, perhaps a
permanent home, in our courtrooms. The legal disputes increasingly involve the principles and
tools of science. Proper resolution of those disputes matters not just to the litigants, but also to
the general public – those who live in our technologically complex society and whom the law
must serve.

From 1923-1993, Frye “‘general acceptance’ test was the standard for determining the
admissibility of novel scientific evidence”. This test draws the basis of admissibility based on
whether the scientific principle underlying the evidence is accepted by a sufficient portion of
the relevant scientific community: Just when a scientific principle or discovery crosses the line
between the experimental and demonstrable stages is difficult to define.

11
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999)
12
General Electric v. Joiner, 522 U.S. 136 (1997)
In cases of , General Electric Co. v. Joiner13 and Kumho Tire Co. v. Caemichael14, the Court
broadened the reach of trial judges under Daubert by insulating their decisions from review
thus allowing them to consider conclusions instead of only methodology and extending the
gatekeeping role to non-scientific evidence. In joiner, the Court held that appellate court should
review trial judge’s decision under the abuse of discretion standard, and it concluded that the
trial court could exclude testimony based on disagreement with the experts’ interpretations of
studies, rather than with their methods alone, since “conclusion and methodology are not
entirely distinct from one another”. In Kumho Tire, the Court extended the Daubert guidelines
beyond forensic evidence to the “technical” and “other specialized knowledge also referenced
in Rule 702.

A review of the case law after Daubert shows that the rejection of expert testimony is the
exception rather than the rule. When a trial court, rules that an expert’s testimony is reliable, it
does not necessarily mean that contradictory expert testimony is unreliable rather it permits
testimony that is the product of competing principles or methods in the same field of expertise.
Expert testimony cannot be excluded merely because the expert uses one test rather than
another, when both are accepted in the field and reach reliable results.

UNITED KINGDOM
In England, the law relating to the admissibility of scientific evidence is totally different from
United States. The English precedential analysis shows that judges are reluctant to impose any
stringent standards like ‘reliability’ test in U.S. The English courts are following the common
law test of “helpfulness” developed by Lawton, L.J. in the famous case R. v. Turner.15

The four requirements of admissibility of expert opinion in England and Wales (common law)
countries are

i) assistance
ii) relevant expertise
iii) impartiality and

13
522 U.S. 136 (1997)
14
526 U.S. 137 (1999)
15
R v. Turner [1975] QB 834
 iv) evidentiary reliability.

Assistance: The meaning of “Assistance” was explained by the leading case of Turner that an
opinion of expert “is admissible to furnish the court with ... information which is likely to be
outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury
can form their own conclusions without help, then an opinion of an expert is unnecessary”. 16In
other words if the opinion of the expert is unnecessary, it becomes inadmissible.

Relevant Expertise: The person claiming expertise must be an expert in the relevant field.
This point has been explained in the South Australian case Bonython17. According to the
explanation, expertise is a requirement that an individual “has acquired by study or experience
sufficient knowledge of the subject to render his [her] opinion of value”. This description has
also been favoured in England and Wales. In R (Doughty) v Ely Magistrates Court18 it has been
suggested that the entry for representing expertise is not very high.

The interpretation of threshold can be thus:

 Firstly, the entry point should not be lower than what is required to prove a fact on
the balance of probabilities;
 Secondly, laymen are not qualified to give some types of expert evidence.
 Thirdly, guideline for determining expert evidence which are formulated for
scientific fields must be followed .

Impartiality: The evidence that is presented by the expert should be unbiased and purposive
evidence. In Field v Leeds City Council19, Lord Woolf, the Master of the Rolls, said for an
expert to be “qualified to give evidence as an expert” he must be able to provide an objective
and unbiased opinion on the matters to which his or her evidence relates. In Tooth v Jarman20
expert evidence was recognized by the Court of Appeal (Civil Division) where it was held that
expert evidence should provide independent assistance to the court by way of objective
unbiased opinion and that where an expert witness has a material or significant conflict of

16
R v. Mohan [1994] 2 SCR 9
17
Bonython [1984] 38 SASR 45
18
R (Doughty) v Ely Magistrates Court [2008] EWHC 522
19
Field v Leeds City Council [2000] 1 EGLR 54
20
Tooth v. Jarman [2006] EWCA Civ 1028, [2006]
interest, the court is likely to decline to act on his/her evidence, or indeed to give permission
for his/her evidence to be adduced.

Evidentiary Reliability: The expert opinion evidence must in other respects satisfy a threshold
(entry) of acceptable reliability. Except these some common law admissibility requirements
has also been quoted by the Court of Appeal (Criminal Division) in different cases.

In Dallagher21 it was laid that the field of forensic evidence must be sufficiently well
established to pass the ordinary tests of relevance and reliability further the admissibility of
expert opinion evidence was cited although in England and Wales, it had not been properly
analyzed. In Bonython22 the requirement of admissibility was held as being “whether the
subject matter of the [expert’s] opinion forms part of a body of knowledge or experience which
is sufficiently organized or recognized to be accepted as a reliable body of knowledge or
experience. The common law reliability test was confirmed by the court of appeals in Reed23
for “expert evidence of forensic nature.

21
Dallagher [2002] EWCA Crim 1903, [2003]
22
Bonython [1984] 38 SASR 45
23
Reed [2009] EWCA Crim 2698, [2010] 1 Cr App R 23
 Conclusion
From the foregoing discussion it is clear that there exist a legislative vacuum in the law relating
to admissibility standards of scientific expert evidence in India. In the light of recent
developments in science and technology one cant ignore the forensic evidence in a criminal
trial which is presented before the Court involving novel forensic methods. The judicial
discretion vested upon the trial judges in admitting expert evidence is a major lacuna where the
Courts are completely kept in dark on matters of science. It is thus the need of the hour that a
comprehensive law has to be made to regulate the forensic evidence and its admissibility in
trials.

In India the principles of admissibility of evidence is relevancy. According to the Indian

Evidence Act, 1872, section 45 of, deals with expert evidence. The principles of admissibility
is that evidence can be given only of relevant facts and facts in issue. A fact may be relevant
and not admissible, like in case of documentary evidence, If it does not satisfy the legislative
provision, although a document might be relevant but it would not be admissible. Therefore, in
India, the principle for accepting forensic evidence is relevancy and admissibility.

Under, the broad principles of ‘relevancy’comes reliability, helpfulness, fitness which are
treated as separate grounds in US. Assistance, relevant expertise, impartiality and evidentiary
reliability which are the principles for admission of expert evidence in UK, also comes under
the requirement of ‘relevancy’. In India, the law regarding expert evidence is guided by
sections 45 to 51 of the Indian Evidence Act, 1872.

In the case of Mahmood v. State of U.P.24, the Supreme Court has defined the term expert and
said that it would be highly unsafe to convict a person on the sole testimony of an expert.
Although conviction based on expert evidence is unsafe, yet the incorporation of section 53
and 53A of the Code of Criminal Procedure, 1973, mandates that in certain cases the expert
evidence is indispensible.

In the case of Selvi v.State of Karnataka25 the Supreme Court held that compulsory
administration of forensic techniques like polygraphy, Narco-analysis and Brain-Mapping is

24
AIR 1976 SC 69
25
2010 (7) SCC 263
unconstitutional if performed without the consent of the accused as it violates Article 20(3) and
article 21 of the Constitution of India

In the United States jurisdiction Frye, Daubert and Kumho, had played a significant role in
determining the standard for the admissibility of expert evidence. From 1923 to 1933, Frye’s
general acceptance test was the dominant standard for determining the admissibility of novel
scientific evidence, which insisted in two things:

i) to determine the relevant scientific field in which the particular scientific

technique belong
ii) whether the community accepted the technique in issue.

In fact, this standard was a helping hand to the trial judges in determining the reliability of the
evidence. Prior to the judgment of Frye, the determinants for admissibility of scientific
evidence was in a pathetic condition. A turning point occurred when United States Supreme
Court decided the Daubert case. In Daubert court overruled the Frye’s general acceptance
standard as an exclusive standard in the light of the provisions in the Federal Rules of Evidence.

In Joiner court held that appellate court can review the decision of the trial judges for any abuse.
Court also declared that in evaluating the reliability of scientific evidence, trial judges can
consider the conclusions based on methodology of a scientific technique.

In U.K. in between 1980-2000, the appreciation of scientific evidence was in a pathetic

condition. Numerous cases were decided without proper evaluation, which resulted in wrongful
convictions. It seemed that the major problem in U.K. is the non-application of the evidentiary
standard like reliability. In R v. Gilfoyle26 court showed curiosity in applying the reliability test
by citing Frye’s general acceptance factor. Explaining that in U.S. the “…evidence based on a
developing new brand of science or medicine is not admissible until accepted by the scientific
community as being able to provide accurate and reliable opinion.” However, unfortunately in
a later decision R v. Dallagher27, court reversed its view by criticizing the observation in
Gilfoyle. Thus in most of the cases, court evaded from implementing the reliability test as a
standard; instead court applied some other criteria which were based on the evaluation of the
qualification of the expert.

26
[2012]2 Cr App R 5
27
R. v. Dallagher [2002] EWCA Crim 1903
 BIBLIOGRAPHY
 The Indian Evidence Act 1872

 Federal Rules of Evidence. 1975

 B.R. Sharma, Forensic Science In Criminal Investigation & Trials (Universal

Publication, New Delhi, 4th edn. 2008)

 Dr. R.K. Chaubey, An Introduction to Cyber Crime and Cyber Law (Kamal Law House,

Kolkata, 2008 edn., 2008)

 Jyotirmoy Adhikary, DNA Technology in Administration of Justice (LexisNexis

Butterworths, New Delhi, 1st edn. 2007)