Critiquing Expert Witness Practices India - Legal Challenges And Debates
Author: LawSphereX
Category: Evidence & Procedure
Published:
Updated:
CRITIQUING EXPERT WITNESS PRACTICES INDIA:
LEGAL
CHALLENGES
AND DEBATES
Narri Aashritha, BA. LL.B. (Hons.), Symbiosis Law School, Pune
ABSTRACT
The adoption of expert witnesses in legal proceedings, particularly within the Indian setting, is becoming significant due to the rising number of courts encountering complex issues. An expert witness is an individual with significant expertise in a certain field, whose insights are beneficial for deliberation in specific matters; nonetheless, their contributions are merely advisory and do not obligate the court. The Adhiniyam on Bharatiya Sakshya, 2023, specifically includes clauses 39 to 50 pertaining to the regulations surrounding the evidence and presentation of expert witnesses in Indian courts. This research article analyses specific provisions of the Indian testimony Act pertaining to expert witnesses, providing a comprehensive overview of the evolution of changes and judicial precedents related to expert testimony throughout the justice delivery system.
The paper examines case law, focussing on the evolving patterns and issues associated with the admission of expert opinion in legal discourse and the utilisation of such evidence. This article provides pragmatic solutions for addressing the challenges associated with expert witnesses, ensuring that expert testimony aids the court's decision-making process without undermining judicial procedural rules.
I. Introduction
Background
And Statement Of Problem The general rule of jurisprudence is that neither the witness's opinion nor belief is admissible in court, reiterating the "BEST EVIDENCE RULE" that the court should hear the best evidence for speedy and fair justice with an expert witness as an exception1. Though hearsay evidence isn't accepted, witnesses report facts they perceived through their five senses2. However, “expert evidence”—expert opinion—is crucial in circumstances involving intricacies beyond the scope of a common man. “Experto crede” in Latin means “believing in the one who has expertise knowledge in particular matter”. An Expert Witness refers to a person who testifies in court about issue in which they have expertise or extensive knowledge. 3 Expert witness and their evidence are crucial to deliver justice as their testimony is utilised in cases which require technical knowledge to resolve.
Therefore, in such cases, courts need expert evidence. Expert witness testimony is advisory. They have no court-binding authority. Expert witness provides their expertise to help the court in reaching fair decision. Bhartiya Sakshya Adhiniyam,20234 regulates expert witness in India. As with any legislation, it has been amended considerable times, enhancing the role and admissibility of expert witnesses and subjecting them under intense examination. Under the current act Section 39-50 regulate expert, expert opinion/evidence. Expert witnesses are often termed as “hired guns”, being their “specialised knowledge” auctioned to highest bidder. There is a lot of backlashes of being biased and thereby creating a hurdle in fair and transparent legal process of delivering justice basing their expertise. This Research article will thoroughly examine notion of “expert witness” under the Adhiniyam.
We will first analyse the provisions relating to expert witness in addition to the prominent judicial precedents. Thereafter, an attempt to ascertain and unravel legal challenges
1 Mobarak Ali Ahmed v. State of Bombay, A.I.R. 1957 S.C. 857 (India).
2 Saunak Rajguru, Evidentiary Value of Medical Witness, Lekhoj Research Journal of Law & Socio-Economic Issues, Vol 1, Issue II, Lekhoj Publications, ISSN: 2456-4524, p.4(2019).
3 State of HP v Jai Lal, (1999) 7 S.C.C. 280 (India).
4 The Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023 (India).
surrounding expert witness had been made. Finally, article is concluded by presenting few viable solutions to these challenges. Research Questions
1. What is the legal framework, qualifications, criteria rules etc., surrounding expert
witness under The Bhartiya Sakshya Adhiniyam,2023?
2. How had Indian judiciary interpreted the role and admissibility of expert witness, and
guarantee judicial independence while upholding legal standards?
3. What are the key challenges/issues/ lacunae in cinching the credibility and reliability of
expert witness under The Bhartiya Sakshya Adhiniyam,2023.
4. What are some viable solutions/recommendations that can be potentially applied to
strengthen the legislation pertaining to expert witness? Research Objectives
1. To have an extensive understanding pertaining to legal provisions and frame work
surrounding BNS.
2. The objective is to analyse the judiciary's admissibility and autonomy by analysing
Indian court precedents on role and admissibility of expert witness.
3. To do an extensive examination of the legal framework of expert witnesses and
comprehend the legal challenges and difficulties that are involved.
4. To devise and propose ideas to potentially resolve the legal difficulties and conflicts
that have been discovered. II. Legal Jurisprudence Exploring Provisions In Consonance With The Bharatiya Sakshya Adhiniyam, 2023. The current legislation is a prime statute governing the rules of evidence including expert witness, with a rationale of delivering equitable justice where an expert input is required on subject matter demanding specialised knowledge. Section 395 of the Adhiniyam establishes the criteria for admitting expert witnesses or evidence in court. Sections 40 to 50 discuss specific instances where the viewpoint of an expert is significant and can be accepted as evidence, as well as situations where it is not relevant and cannot be accepted as evidence. Admissibility Of Expert Witness According to the Evidence Act, as established in the case of 'Mobarak Ahmed vs.
State of Bombay', the prevailing principle is that a witness should refrain from expressing their personal viewpoint. The role of the witness is to accurately recount the objective details of the events they observed. The court's role is to form and articulate its view based on the evidence presented by the parties involved. Nevertheless, there is a notable exception to this overarching principle in the form of 'expert witnesses'. When a case involves a subject topic that is very complex, the court may need to seek assistance from an expert by requesting their testimony as 'expert evidence/opinion'. As an exception to the general rule of admitting witness opinion as evidence, section 396 delineates experts’ observation as evidence in the subject matter pertaining to foreign law /art /science or any other field or to identify finger prints or handwriting.
Deducing The Historical Study Before the admissibility of expert opinion was restricted to the subject matter pertaining to foreign law, art, science, and for the identification of handwriting or finger impressions. However, the legislation had been reformed in peace meals with the enhancement in various fields. Delving Into The Intricacies Of The Section: The term science/art if considered in narrower ambit would exclude various subject matter where expert witness is often admissible for example subject matter of trade, ballistics etc. , However any employment or a business embodying to its pursuit is considered as an art. It has to interpreted in border sense on all the subject matters which requires specialised experience
5 The Bharatiya Sakshya Adhiniyam,2023, § 39, No. 47, Acts of Parliament, 2023(India).
6The Bharatiya Sakshya Adhiniyam,2023, § 39, No. 47, Acts of Parliament, 2023(India). for conduction and observation and thereby reaching observation for example in the field of art per se in photography the opinion of photographer for its authenticity, artists for the authenticity pertaining to a piece of art. The individuals who have expertise knowledge in the fields which are beyond understanding of common man are called experts. The section lacks explicit criteria for expert qualification. Expert testimony under Section 45 is advisory7. It doesn't bind the courts. Expert evidence or opinions are only admissible in court when the expert is cross-examined and presents explanations and justifications for his opinion. Section 293, Code of Criminal Procedure, 1973 states that scientific expert opinions are acceptable only when the court summons and examines them.
Relevancy Of Facts Delineates certain facts which might be irrelevant before but later becomes relevant on being consistent or inconsistent with expert opinion. 8 Admissibility of experts opinion Delineates the admissibility of expert’s opinion persistence to the genuine handwriting/signature. 9 Relevancy Of Opinion Permits expert opinions to determine the existence of a right or custom10 read with S. 11 and sS. 26 with prior delating with rights and customs later delineating with hearsay evidence permitting a second-hand opinion on reasonable grounds of death or inability of that person, However the only requirement under this section to prove custom or evidence is unambiguous witness. Section 43 for recognising usages, tenets etc. , 11
7 The Bharatiya Sakshya Adhiniyam,2023, § 45, No. 47, Acts of Parliament, 2023(India).
8 The Bharatiya Sakshya Adhiniyam,2023, § 40, No. 47, Acts of Parliament, 2023(India).
9 The Bharatiya Sakshya Adhiniyam,2023, § 41, No. 47, Acts of Parliament, 2023(India).
10 The Bharatiya Sakshya Adhiniyam,2023, § 42, No. 47, Acts of Parliament, 2023(India).
11 The Bhartiya Sakshya Adhiniyam,2023, § 43, No. 47, Acts of Parliament, 2023(India).
Relevancy Of The Grounds of Opinion In the circumstances when the opinion of the living person is considered relevant the grounds through which such opinion is derived is also considered relevant12 Section 39 is a prima facies statute dealing with the expert witness due to the lacunes present in the section causes hinderance to the equitable legal process encouraging author to conduct extensive research and unravelling challenges causing the same with viable solutions III. Judicial Pronouncements Having comprehensively analysing the legal provisos relating to the aspect of expert witness, the author now ascertains to analyse the prominent judicial pronouncement and landmark judgements pertaining to criteria, admissibility of expert witness in criminal and civil proceedings. Expert Witness: Relevance RAJ KISHORE v.
STATE Having no clear-cut criteria for the eligibly of considering expert opinion leaving it to the court’s discretion, therefore, court held that it becomes crucial to satisfy the court for admitting experts’ opinion, testifying before court. RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL Ltd. 13 Wherein court lays down tests and guidelines for admission of expert’s opinion. Firstly, there should be a necessity for an expert opinion which is beyond layman’s knowledge. Secondly, Expert has to be versatile in the subject-matter on which he is basing his opinion, further his opinion has to be based on just principles. GRID CORPORATION OF ORRISSA LTD v. EASTERN MRTALS AND FERRO ALLOYS14
12 The Bhartiya Sakshya Adhiniyam,2023, § 44, No. 47, Acts of Parliament, 2023(India).
13 Ramesh Chandra Agarwal v. Regency Operation, (2009) 9 S.C.C 709 (India).
14 Grid Corporation of Orissa Ltd. v Eastern Metals and Ferro Alloys, (2011) 1 S.C.C 334 (India).
Court held that though the expert opinion is advisory and not-binding, it cannot be waived away when based on justified reason and equity principles. Highlighting the principle, that when the opinion is based on technical subject matter its deserved to be accepted rather than interfered unless its arbitrary and unreasonable. DAYAL SINGH v. STATE OF UTTARANCHAL15 The court held that expert witness opinion would be acting catalyst to reach the conclusion, however to treat it as a conclusive one its purely on the basis of the judge’s discretion. Procedure for expert witness: R v. NOWLEY: Court held that the expert should be appointed by the court as he wouldn’t be acting as a witness for prosecution or defendant rather would be considered as a testimony for the court. Hence, this pronouncement highlights that it’s the duty of the court to prevent biasedness.
Further, the expert has to submit opinion in writing to the lawyer and the other party. Evidentiary Value Of Expert testimony: The Indian Judiciary has extensively deliberated on the evidentiary value and admissibility of various forms and circumstances of expert evidence. JUGMOHAN v. MANGALDAS Court held that while considering the expert opinion of a person in consonance to the customs, opinions of those mentioned in 42 would be considered as 9best evidences as they would be considered as depositaries of customary law just like the text books with that of general law. MADAN GOPAL v. NAVAL DUBE 16 The court held that medical expert’s opinion wouldn’t be considered as a conclusive one rather would be used to draw conclusive opinion, however it cannot be waived purely on a wrong
15 Dayal Singh v. State of Uttaranchal, A.I.R. 2012 S.C. 3046 (India).
16 Madan Gopal vs. Naval Dubey, (1992) 3 S.C.C. 204 (India).
prescribed format. When the medical opinion comes in contrary with the eye witness then the eyes witness would be preferred. AZIZ BANO v. MOHAMMAD IBRAHIM HUSAIN Court held that the laws which aren’t enforceable in India are called foreign laws, however the laws of land and personal laws and thereby making experts opinion irrelevant. State v. M. Krishna Mohan 17 The court highlighted that when expert witness comes on question the testimony of expert opinion of expert witness can’t be discarded if he had cleared All India Finger Print Expert examination and is a Finger print inspector. Preservation Of Judicial Independence MACHINDRA v. SAJJAN GALPHA RANKHAMB18 The court held that, it shouldn’t let its judgement surrender to the expert’s testimony rather that is it shouldn’t replace its own assessment rather use to reach the conclusive opinion there by maintain independence of judiciary.
IV. Comparative Analysis Expert Testimony Scope US and England implement vast approach in amongst India, U. S and England over comparative analysis of expert witness allowing testimony on any relevant matter. It is contrast with section
45 of Indian Evidence Act where Trade is not included explicitly. Both countries exercise
judiciary discretion of art or science to encompass trades and skills, from surveyors to Blacksmiths. Judiciary in India observed broad interpretation of section 45 in Basudeo Gir v. State19 considering footprint evidence and emphasising uncertainties outlining subjects under science or art within the ambit of Indian Legal framework.
17 State vs. M. Krishna Mohan, A.I.R. 2008 S.C 368 (India).
18 Mahindra Sajjan v. Sajjan Galpha Rankhab, (2017) 13 S.C.C 491 (India).
19 Basu Dev Gir v. Blacksmiths, A.I.R. 1959 Pat 534 (India).
Exclusionary Rules If subject matter is beyond intellectual capacity of common person necessity of expert witness is necessary. These experts assist the judiciary in understanding and interpreting facts. Courts in England often avoid their involvement in matters pertaining to human behaviour and emotions. As observed by U. S in James Victor Salem v. United States Lines Company20, expert evidence can be excluded if the jury can understand the case facts. The above specified approach attracted criticism pertaining to human behaviour and psychology which lead to relaxation in R v. Robinson21, England. Ultimate Issue Rule Role of expert witness is not to modify or define the ultimate issue of case known as Ultimate issue rule. They are not deployed to override judiciary but rather help them arrive at clear factual understanding.
As highlighted in State v Pali Ram22 underlined the need for judges in India to form their own opinion rather than surrendering to expert witness testimony and similar approach is taken by judiciary in England. And in U. S, expert opinion are admissible in matters regarding ultimate issues under specific circumstances. V. Critical Analysis Having analysed the legal provisions and precedents the author underscores the challenges posed by the expert testimony due to the existing lacunes in the current law Expert’s testimony plays a pivotal role judiciary towards fair and equitable decision. Significance Of Employing Expert Witness: Firstly, having expertise in technical subject matters which is far beyond layman’s understanding, provides a fair and equitable justice.
Secondly, their skill in dividing complex matters leading to clarity and simplification and making understand non-experts, making all the parties know the intricacies of the case.
20 James Victor Saleem v. United States Company, 8 L.Ed. 2d 313 (1962)
21 R v. Robinson, 5 [I994] 3 All ER 346.
22 State v. Pali Ram, 1979 SCR (1) 931.
Unravelling The Legal Challenges: Justice Bought By Pockets
1 ELIGIBILITY CRITERIA
From section 3923 it can be inferred from that the expert should be qualified in certain skill; however, the degree of qualification hasn’t been mentioned leading to ambiguity. Further though 5 area had been mentioned the section still lacks clarity as it includes a wide range.24
2 ADMISSIBILTY
The section lacks, the clear-cut eligibility of what kind of testimony’s have been adopted though precedents tried to fill the gap by making up the relevance however testimony covering wide range still calls for strong provisional legitimacy as experts testimony standing on the same footing as facts.25
3 BIASEDNESS
For judges to draw a fair conclusion, the expert’s opinion being independent plays a pivotal role, however experts being bought by deep pockets causes prejudice to the other parties. Such instances raise a concern regarding legitimacy as it being manipulated piece of testimony.26
4 COMPOUNDMENT OF HUMAN KNOWLEDGE
Though the expert is impartial, still being subjected to human knowledge stands imperfect leaving many unobserved phenomena which might strengthen the responding party/prosecution party leaving a scope for uninformed justice, as it would be impossible for anyone to master all the things.27
5 CONTRODICTORY OF OPINIONS
Another intriguing aspect is the potential for conflicts of viewpoints to emerge. Typically, the Courts do not just depend on the view of a single expert. Instead, they seek and invite the opinions of other distinguished authorities. Consequently, this often results in situations where the viewpoints of two or more specialists are divergent or contradictory. Once again, this presents a difficulty and conflict for the court to ascertain whose perspective to trust and which to
23 The Bharatiya Sakshya Adhiniyam,2023, § 39, No. 47, Acts of Parliament, 2023(India).
24 Pragati Gosh,Evidentory Value of Expert under Indian Act,1872, at Evidentiary Value of Expert Evidence under Indian Evidence Act, 1872 (shareyouressays.com).
25 Murari Lal v. State of MP, A.I.R 1980 S.C. 531(India).
26 Prem Sagar Manocha v. State, (2016) 4 S.C.C. 571 (India).
27 State v. Walter,2023-Ohio-2700.
disregard.28
6 COMPLEXITY OF SUBJECT MATTER
Having experts opinion derived from technical aspect its often challenging for the experts to make judges understand the complex subjects without distorting them as distorted testimony leads to discrepancies in justice. Further, during the cross examination, lawyers finding it difficult to challenge the case as it’s based on technicalities thereby creating an unpaved way even when corrupt opinions are given.
7 JUDICIAL DISCREATION
The law being silent about the per se admissibility of expert’s testimony, and their opinion acting merely as a catalyst often creates discrepancies in delivering justice because of biasedness, thereby flawing the equity principle. 29 Conclusivity v. Corruption Expert opinion cannot be considered as a conclusive one because it being subjected to biasedness and thereby effecting the delivery of justice, though expert witness is subject to cross-examination it still can’t be corrected because lawyers can’t be versatile with technical subjects. Further, though experts’ opinion can be verified it still cannot be scrutinised fairly again because of corruption. Experts’ opinion would still be subjective because of a human not being mastered in all the subjects; other expert might end up driving a different conclusion as its purely based on knowledge which is subjective.
Has Mechanisms Envisaged By The Courts Suffice: Firstly, court considering it as a mere advisory opinion, doesn’t overcome the challenges as this testimony if utilised to the fullest would be the most reliable one. Secondly, though court allows refreshing of memory as per 16230,it still doesn’t mitigate biasedness. Thirdly, though “hot tubbing” is used the lawyers not being versatile with technical subject matters makes no difference. 28 Paul Michell & Renu Mandhane, The Uncertain Duty of the Expert Witness, 42 ALTA. L. REV. 635 (2005).
29 Abinger v. Ashton, (1873) 17 LR Eq 358, at p 374.
30 The Bharatiya Sakshya Adhiniyam,2023, § 39, No. 162, Acts of Parliament, 2023(India).
Has Adhiniyam Overcome Challenges: Apart from the amendment extending towards digital signature, the verbatim pertaining to the sections still remains the same, depicting clear failure of the legislature to address and overcome the challenges though highlighted in many precedents before. The new law therefore stands unfruitful to address the same. VI. Conclusion And Suggestions Expert Witness: Need For Reformation To conclude experts’ testimony plays a vital significance in aiding the court with complex matters and reach conclusive decision as such admission is used only after exhausting general means of investigation.
Expert evidence being laid on the science stands on a higher pedestal than other testimony’s however being plagued undermines the expert’s opinion to mere an advisory one rather than corroborative one which again paves a way for judicial discretion again leading to drawback in delivering equitable justice. In this paper an attempt is made to analyse the discrepancies and unravel the challenges posed by the expert’s testimony. It’s considered as a corroborative one as its subjective31. The legal frame work is still plagued leading to ambiguity so as to who is an expert, what measures to be considered to reduce biasedness or in case of conflict of opinions, the relevance of its admissibility. Potential Solutions: In the light of the same the author suggests few feasible solutions:
1 Establishing Eligibility Criteria
Experts should have defined qualifications, including standard qualification in that subject matter and professional experience, and a method should be devised to verify their qualifications to promote transparency.
2 Ethical Standards and Independency
Ensure expert independence to reduce prejudice and subjectivity. A Code of Ethics must outline honesty, decency, impartiality, etc. A 31 Juhi Mittal & Darshan Patankar, Expert Opinion and Fingerprint Evidence, 6 Supremo Amicus 164 (2018). bias disclosure rule is also needed.
3 Regulatory Body
Finally, a regulatory authority must oversee expert witness selection, function, and admissibility. This will guarantee all procedures and ethical standards are followed.
4 Training
This should be designed to help experts keep up with technology, and lawyers should be trained with complex subjects to build their case during cross-examination and mitigate biasedness.32
32 Akanksha Pandey, Relevancy of Expert Opinion under the Indian Law of Evidence, 2 INDIAN J.L. &
LEGAL Rsch. 1 (2021).
Bibliography
Books • Ram Jethmalani, Commentary of Evidence Act, 72 (1999). • Dr. V. Krishnamachari, Law of Evidence 69 (2023). • DD Basu, Constitution of India 201 (2010). Articles • Gormley, Donald C. “The Role of the Expert Witness.” Ethnohistory, vol. 2, no. 4, JSTOR, 326–46. (1955).
Roy G Beran, Role of Expert Witness in the adversarial Legal System, Journal of L aw and Evidence,2-3 (2009). • Sadhana S, K Roja, A Study on the Admissibility of Expert Evidence in The Indian Evidence Act, 120 International Journal of Pure and Applied Mathematics 2-13, (2018). • Akanksha Pandey, Relevancy of Expert Opinion under the Indian Law of Evidence,
2 INDIAN J.L. & LEGAL Resch, 1 (2021).
Zafer, M. R. “SCIENTIFIC EVIDENCE-EXPERT WITNESSES.” JSTOR, 53–77, (1972). Case Laws • Mobarak Ali Ahmed v. State of Bombay, A.I.R. 1957 S.C. 857 (India). • State of HP v Jai Lal, (1999) 7 S.C.C. 280 (India). • Ramesh Chandra Agarwal v. Regency Operation, 2009 AIR SCW 7308. • Grid Corporation of Orissa Ltd. v Eastern Metals and Ferro Alloys (2011) 1 S.C.C 334 (India).
Dayal Singh v. State of Uttaranchal, A. I. R. 2012 S. C. 3046 (India). • Madan Gopal vs. Naval Dubey, (1992) 3 S. C. C. 204(India). • State vs. M. Krishna Mohan, A. I. R. 2008 S. C 368(India). • Basu Dev Gir v. Blacksmiths, A. I. R. 1959 Pat 534 (India). • James Victor Saleem v. United States Company, 8 L. Ed. 2d 313 (1962) • R v. Robinson, 5 [I994] 3 All ER 346. • State v. Pali Ram, 1979 SCR (1) 931. • Murari Lal v. State of MP, A. I. R 1980 S. C. 531(India). • Prem Sagar Manocha v. State, (2016) 4 S. C. C. 571 (India). Online Sources • Expert Witness: Meaning, Criteria, Challenges, and Best Practices, (May. 2024),available at Expert Witness: Meaning, Criteria, Challenges, and Best Practices - GeeksforGeeks • Legal Scriptures Team, The Use of Of Expert Witnesses In Dispute Resolution: Benefits and Challenges(Aug.
2023),available at: The Use of Expert Witnesses in Dispute Resolution: Benefits and Challenges - Legal Scriptures Statutes: • The Bharatiya Sakshya Adhiniyam,2023, § 39, No. 47, Acts of Parliament, 2023(India). • The Bharatiya Sakshya Adhiniyam,2023, § 40, No. 47, Acts of Parliament, 2023(India). • The Bharatiya Sakshya Adhiniyam,2023, § 41, No. 47, Acts of Parliament,
2023(India). • The Bharatiya Sakshya Adhiniyam,2023, § 42, No. 47, Acts of Parliament, 2023(India). • The Bhartiya Sakshya Adhiniyam,2023, § 43, No. 47, Acts of Parliament, 2023(India). • The Bhartiya Sakshya Adhiniyam,2023, § 44, No. 47, Acts of Parliament, 2023(India). • The Bharatiya Sakshya Adhiniyam,2023, § 45, No. 47, Acts of Parliament, 2023(India).