Chapter-IX Conclusions and Suggestions

Chapter -IX
CONCLUSIONS AND SUGGESTIONS
9.1 Conclusion of the Study
The immediate aim of criminal justice system is to reduce crime rate in the
society by ensuring maximum detection of crimes and prosecution of offenders so as
to meet the ends of justice. In today‟s world, where crime have increased in numbers
and in varied forms and are committed even without leaving trace evidence, this
could be achieved only by scientific orientation of criminal justice system. Thus
assimilation of forensic science techniques, especially Forensic Psychological Tests
in the criminal justice system have become inevitable. However these tests are
criticised for their adverse impact on human rights, especially that of the accused.
Though several human rights of the accused may be affected by the assimilation of
these tests, the right against self-incrimination and right to fair trial of the accused are
analysed because of their paramount importance. Hence study was made with special
emphasis on impact of Forensic Psychological Tests on the right against self-
incrimination and right to fair trial of the accused.

It may be stated that, the emergence of Forensic Psychological Tests was

actually proposed against the cruel and inhuman modes of punishments and harsh
treatments in criminal justice system associated with the demonological thinking that
was prevalent prior to Seventeenth Century. Though all these tests are designated as
Forensic Psychological Tests, the degree of physical invasiveness varies with the
nature of the tests. Since mid-Nineteen Nineties most of these tests are extensively
used in different countries in various settings civil and criminal. USA makes the
widest use of Polygraph Test. Some countries like South Africa, Canada, Poland,
Japan and some state jurisdictions in USA admit them as evidence under certain
circumstances. In those countries in which the test results are admitted as evidence in
trial, the administration, expertise and training of the experts are far more advanced
than in India.

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The study also revealed the requirement for more research and validation
studies as to these tests. Government funding is provided in countries like USA in
neuroscience projects. The analysis of foreign position has revealed that both
common law and civil law countries admit the test results. It is also found that most
of the countries are parties to most of the international conventions and hence bound
by the human rights standards provided therein which is applicable with respect to
their criminal justice process. Thus it may be stated that, minimum guarantees as to
fair trial is guaranteed in the criminal law in all the countries in the world,
irrespective of whether they follow accusatorial or inquisitorial system. So India may
take lessons from the countries wherein the tests are used in criminal justice settings
irrespective of whether they follow accusatorial or inquisitorial system.

Regarding the status of Forensic Psychological Tests in India, based on

information obtained by filing application under Right To Information Act, 2005, it
is found that, out of 38 Laboratories, only 14 laboratories in India have Forensic
Psychology Division. In Central Forensic Science Laboratory, Central Bureau of
Investigation, Delhi and in State laboratories, the Forensic Psychology division
functions well. It is also found that the laboratories conducts the tests only based on
court order and never conducts the tests at the request of private parties. The study
also revealed that the cases referred for these tests shows an increasing trend in
recent years.

Regarding the safeguards taken while conducting the tests, the only
procedural defect noticed, is the absence of lawyer when the tests are conducted. It is
found that the laboratories are not particularly insisting this safeguard. It is also
found that all the laboratories take written consent before conducting the tests and the
tests are not conducted if the subject is not giving consent.

Before the conduct of the tests, Physical and mental fitness of the subjects are
assured. All the safeguards are taken as per the Procedure Manual provided for the
respective tests. For Narco Analysis, all medical facilities are provided as per the
medical requirements. It is found that, all laboratories take safeguards as per Selvi
requirements and National Human Rights Commission guidelines. Regarding video

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graphing the procedure, though Narco Analysis is mandatorily video graphed, as far
as Polygraph is concerned; only three laboratories video graphs the entire procedure.
It is also found that delay and pendency of cases is presently not a serious issue as far
as Forensic Psychological Tests are concerned.

It is revealed that the minimum qualification of a Forensic Psychologist is

post-graduation in psychology. The experience of the examiners ranges from 1 year
to 25 years. Most laboratories have two psychologists in the division. The study also
revealed that there is requirement for more psychologists in some laboratories. It is
found that the examiners who conduct Forensic Psychological Tests are qualified and
competent.

The study revealed that there is lack of proper administration of forensic

science as such in our country. Though Forensic Science Development Authority is
established; it has control only over Central Forensic Science Laboratories. There is
also no system of feedback mechanism in Forensic science service in the country.
There is also lack of regulation of forensic psychology practice in the country.

However, it is also found that the research in Forensic Psychological Tests is

emerging in the countries in the world. After 9/11, most of the countries have shown
a rethinking as to the use of the tests especially in terrorism related issues.1 However
the impact of these tests on the human rights of the accused cannot be overlooked,
especially in the light of emergence of new tests and as human subjects are directly
involved in the conduct of these tests. Though several human rights of the accused
may be affected by the assimilation of the tests, right against self-incrimination and
right to fair trial of the accused are of paramount importance.

Regarding the right against self-incrimination, when the common law position is
analysed, it is found that, in USA one of the main issues raised against Polygraph
admissibility is its violation of right against self-incrimination. The right to silence is

1. Lawrence Liang, “ … And Nothing but the Truth, So Help Me Science,” in Monica Narula et.
al. (Eds.), Sarai Reader-Frontiers, Centre for the Study of Development Studies, Delhi, (October
10, 2007), pp100-110 at p.100, available at http://www.sarai.net/publications/readers/07-
frontiers/100-110-lawrence.pdf (accessed on 11/5/ 2013).

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of wider ambit in US law. However, the recent trend of judiciary is to carve out
limitations to this right. Regarding interpretation of testimony also the US courts and
scholars have adopted different approaches. In Canada, UK and Australia Forensic
Psychological Tests are not disallowed on the ground of infringement of right against
self-incrimination but on reliability and admissibility grounds. It is also found that
right against self-incrimination in these countries is only a limited right.

When position under European Convention on Human Rights is analysed, the

right though not expressly provided, is impliedly read into the right to fair trial by
European Court of Human rights. Regarding the type of evidence to be protected
under right to silence under European Convention on Human Rights, analysis of
Strasbourg court decisions reveal that it stress on the evidence which depend “on the
will of the defendant.” The approach of Strasbourg Court regarding right to silence
seems to be more qualified in nature. In order to determine there is violation of the
privilege, the court considers various factors like nature and degree of compulsion
used to obtain the evidence, weight of the public interest involved in the
investigation and punishment of the offence, the existence of relevant procedural
safeguards and the use to which the material so obtained is put. When Forensic
Psychological Tests are analysed in this perspective, it could be seen that
administration of these tests satisfies all the conditions like public interest
requirement, existence of procedural safeguards etc. Hence the tests may not affect
right to silence under Strasbourg court jurisprudence.

Right against self-incrimination in India is protected under Article 20(3) of

the Constitution, The Code of Criminal Procedure, 1973 and The Indian Evidence
Act, 1872. When Forensic Psychological Tests are analyzed in the light of this right,
it could be found that there is no compulsion involved in the case of administration
of Forensic Psychological Tests. It may be stated that even if the tests like Polygraph,
Brain Electrical Oscillation Signature Profiling Test, and Layered Voice Analysis
Test are conducted without consent; there won‟t be any violation of constitutional
right against self-incrimination. Only in the case of Narco Analysis, wherein
anaesthetic procedure is involved, requirement of consent may be made mandatory.
The study also revealed that the direct use of the results of the Forensic

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Psychological Tests in certain circumstances are still not self-incriminatory. It is also

found that the results of the tests and also the process of administration of the test do
not reveal anything more than what was already known by the investigators. Hence
the contents so obtained may be regarded as foregone conclusion and as such no
constitutional rights would be involved. It may be stated that involuntary
administration of the tests does not amount to testimonial compulsion. So the
investigative use of Forensic Psychological Tests does not violate right against self-
incrimination.

It is found that Cognition based theory upon which the Supreme Court in
Selvi relied for its conclusion is not in conformity with its earlier decisions, which is
rendered by larger benches. Moreover the attitude revealed by the court in impliedly
adopting volition test by reiterating and adopting the guidelines laid down by
National Human Rights Commission on one hand, at the same time holding the tests
as unconstitutional by relying on substantive based test on the other hand is self-
contradictory. Thus it may be stated that theoretical basis on which court made its
decision in Selvi, requires reconsideration.

It has also come in evidence that right against self-incrimination does not
protect personal sovereignty over the contents of mind or any form of curtailment of
volitional control. The Government may invade the sovereignty of the contents of
one‟s mind or curtail volitional control, for example when Government grants
someone immunity or wants the content of one‟s mind that would incriminate a third
party. It is also important that society must avail the benefit of scientific progress
using psychological knowledge, if these developments help in criminal justice
administration. More and more research is also emerging in the area of forensic
psychology and researchers are developing more reliable and non-invasive
procedures for the proper detection and investigation of crime. The right to avail the
benefit of scientific progress is also a human right. Hence, it is not proper on the part
of courts to shut the doors towards scientific investigation, which would be beneficial
not only to the victim and public at large, but even to the accused. Hence judiciary
must rise to the occasion to assimilate scientific tests in interpreting the concept of
testimony in self-incrimination clause. Hence it is proposed that interpretation of

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right against self-incrimination must be based on communication based view of

testimony.

The case laws on right against self-incrimination right from Schmerber 2

which based its conclusion on the distinction between suspect is being compelled to
serve as evidence and suspect being compelled to disclose or communicate
information or facts leading to the conclusion of incriminating evidence, had actually
asserted communication based view of testimony. In fact, real evidence or physical
evidence is nothing but suspect being compelled to serve as evidence and testimonial
evidence is suspect being compelled to disclose or communicate information. Thus,
all these case laws by making distinction between real and testimonial evidence is
actually applying communication based view of testimony.

The interpretation of right against self-incrimination based on communication

based view of testimony is more apt in the present era, where scientific innovations
based on Forensic Psychological Tests are upcoming. As per this interpretation,
salient variable is presence or absence of communication. Even verbal answers are
not precluded, if it is merely mechanical. Similarly, observation only psychiatric tests
are also not proscribed as per the privilege. Just because mental states are revealed by
the evidence, it will not ispo facto render the evidence testimonial.

If communication based view of interpretation of right against self-

incrimination is applied, then the pertinent question must be whether a particular
Forensic Psychological Test requires the subject himself to disclose his mental
attitude? This implies that, only if the suspect is required to offer his mental state for
recording of evidence, it would amount to self-incrimination, otherwise not. So the
test must be whether the piece of evidence is either produced by communicative act
or not. Testimony must be construed as process based. Moreover, if testimony refers
to act of communication required to produce evidence, then there won‟t be any
middle case like testimonial like i.e. it would be an alloy composed of multiple parts,
some of which are testimonial and others are physical. In that case, there would be

2. Schmerber v. California, 384 U.S. 757 (1966).

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only physical evidence and testimonial evidence. Hence the theory based on
communication based view of testimony seems more sound. Communication based
view has also found support of scholarly opinions and both Indian and foreign case
laws. If instead of adopting communication based view, substantive based view is
applied in interpreting self-incrimination clause, it would result in inconsistent
results, which may be detrimental to the rights of the accused also.

It may thus be stated that the interpretation of right against self-incrimination

must be based on communication based view of testimony, which would
accommodate both human rights of the accused and scientific tests based on
psychological knowledge. Therefore new Test which Suggested is that, to constitute
violation of right against self-incrimination, the tests are:
(i) Whether the evidence is testimonial in nature? and
(ii) Even if it is testimonial, whether it creates evidence either novel or
unknown, that the investigators could not otherwise lawfully obtain?

In order to be testimonial, communication must stem from an intentional act,

on the suspect‟s part that discloses information about his mental state. Only if the
answers to both the questions are in affirmative, there would be violation of right
against self-incrimination.

If this definition is accepted, whether a Forensic Psychological Test is

constitutional or not, will be contextual and technology specific. If this definition is
taken, then investigative use of Forensic Psychological Tests like Polygraph, Brain
Electrical Oscillation Signature Profiling Test, Layered Voice Analysis and Narco
Analysis cannot per se be considered as violative of Article 20(3).

However regarding Narco Analysis, it may be stated that, as it is an invasive

procedure, only with consent of the accused, the test must be done. With respect to
other tests even if the tests are done without consent, there is no violation of right
against self-incrimination. It is also important to note that the recent trend of
judiciary is to treat physical measures which may evoke testimonial responses as not

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violative of self-incrimination clause.3 It may be stated that important safeguards like

presence of counsel etc. must be ensured while conducting the tests.

When Forensic Psychological Tests are analysed in the light of right to fair
trial of the accused, it may be stated that fair trial encompasses in itself all rights of
the accused from the stage of arrest till execution of sentence. However, the study is
confined to evidentiary aspects, as one of the main issues with respect to Forensic
Psychological Tests is with respect to its admissibility as evidence in trial. The object
of admissibility tests itself is to interpret and apply the rights of the accused.
Evaluation of admission and exclusion of evidence plays an important part in
determining how balance has to be struck between the admissibility of evidence and
protecting the rights of the accused. It is found that the legal system of all the
common law countries have their own admissibility criteria to evaluate the
evidentiary value of any scientific evidence which is applicable in the case of
Forensic Psychological evidence also. In India corroboration is the only requirement
for admissibility of any scientific evidence including Forensic Psychological
evidence. The object of these admissibility standards is to exclude Forensic evidence
unless it rests on scientifically valid principles and methodology and thus protect the
rights of innocent accused.

The analysis of case laws regarding admissibility of all the Forensic

Psychological Tests in all the countries reveal that, the case laws mostly pertain to
Polygraph evidence. Judicial skepticism regarding all these tests in all the countries
is mainly on the grounds of reliability and violation of exclusionary rules. The courts
in Canada and Australia do not admit the test results. Only courts in USA and India
admit the test results. In USA, regarding Polygraph admissibility, courts in state
jurisdictions adopt three divergent views, (i) per se inadmissibility,(ii) admissibility
by stipulation and (iii)per se admissibility. Narco Analysis is generally held
inadmissible. Though evidence based on Functional Magnetic Resonance Imaging

3. Virginia v. Baust, No. CR14-1439, 2014 WL 6709960, at p.3 (Va. Cir. Ct. Oct.28, 2014),
available at https://consumermediallc.files.wordpress.com/2014/11/245515028-fingerprint-
unlock-ruling.pdf (accessed on 26/10/2017).

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Test and Brain Fingerprinting are presently held as inadmissible, the courts
themselves have expressed the possibility of their allowance in future. The
evidentiary value of the tests is analyzed in the light of Daubert 4 criterion and
amended Federal Rules of Evidence. In India, the test results are admitted in favour
of prosecution for the limited purpose in accordance with Section 27 of The Indian
Evidence Act.

The analysis of case laws regarding all the Forensic Psychological tests in
all the countries also reveal that the courts do not make any distinction between
favourable and unfavourable test results while determining admissibility of evidence.
The legal standards governing admissibility has its objective to ensure fair trial rights
of the accused. But when a favourable test result is rejected on these grounds, it may
do more injustice to the accused than doing justice. It may affect his valuable right to
present defense, if that evidence is the only one in his favour. The analysis of case
laws in US jurisdictions wherein the test results are mostly admitted, it is found that
if proper safeguards like stipulation, regulation, presence of lawyer, qualified experts
are ensured, the courts are willingly accepting the test results. All the countries have
a unanimous positive attitude as to the utility of these tests as investigative aid and
their only difference of opinion are regarding their admissibility in trial. The
academic opinion in all the countries are also in favour of admitting the tests results,
especially in the light of abolition of some of the exclusionary rules like ultimate
issue rules in countries like Canada, Australia etc. Hence assimilation of non
invasive Forensic Psychological Tests with proper regulation and safeguards would
ensure human rights of the accused than per se inadmissibility of the test results.
Regarding invasive Tests like Narco Analysis, its investigatory use may be permitted
with proper safeguards like informed consent, presence of lawyer, video graphing
entire procedure etc.
The study also revealed that with respect to evaluation of Forensic
Psychological evidence, Daubert test as such need not be applied. Though object of
Daubert criteria is to promote the human rights of the accused, the research studies
and scholarly view reveal that it does not achieve that objective. Moreover,

4. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

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Psychological Tests must not be considered at par with other tests based on dead
materials. Hence strict application of Daubert criteria for admissibility of Forensic
Psychological evidence is not desirable. Therefore, corroboration must be made as
the only requirement and admissibility of these tests is to be determined on case by
case basis. Invasive tests like Narco Analysis must be used only as investigative aid.

When evidentiary barriers impeding with fact finding process is analysed in

the light of Forensic Psychological Tests, it is found that non invasive tests do not
violate the exclusionary rules like rule against oath helping, past inconsistent
statements, hearsay etc. But as far as Narco Analysis is concerned, it is found that
whether the test violates the rules, cannot be determined a priori and could be
decided only on case by case basis. Exclusionary rules were developed against the
background of a criminal justice system which was radically different from what we
have in this modern era. In those days accused had no right to fair trial. It was
developed at a time in which there was no professional police force, prosecution, no
right to bail or right to counsel or right to defence or right to appeal and capital
punishment was mandatory rule for several offences. Hence in those times
exclusionary rules were inevitable to protect the rights of the accused. However in
this modern era, criminal justice administration is governed by human rights
principles, and police, prosecution and defense lawyering has become scientific and
professionalized. Hence per se exclusion of Forensic Psychological evidence which
may be relevant to the determination of guilt or innocence may do more injustice
than rendering justice.

As to exclusion of evidence based on evidence extraneous to fact finding

process, the analysis of common law position in USA, New Zealand and Canada
reveal that though exclusionary power of the courts are constitutionally or statutorily
provided, courts engage in balancing exercise and admits such evidence after
considering various factors. In some jurisdictions judiciary has carved out exceptions
to exclusionary rule. When Indian position is analysed, it is found that presently the
issue as to illegally obtained evidence is governed by Indian Evidence Act.
Accordingly, the only test for the admissibility of evidence is relevance test. Thus the
Indian courts have residual power in admitting evidence even obtained through

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illegal means on a balance of considerations. When case laws on Forensic

Psychological Tests of the common law countries and India, are analysed in this
contest, it is found that results of the tests are excluded as being violative of right
against torture or other ill treatment and mental privacy.

At this juncture, it is pertinent to note that Forensic Psychological Tests are

not per se banned in India. Analysis of the tests in the light of The International
Covenant on Civil and Political Rights,1966 and The Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment and Punishment,1984, revealed
that the investigative use of the tests are not per se violative of right against torture or
other ill treatment. It is also found that the concept of mental privacy is only an
aspect of procedural protection and hence do not have substantive protection.
Therefore it could also be subjected to restrictions on the grounds of public interest.
Hence it may be stated that admissibility of the results obtained from non-invasive
Forensic Psychological Tests, if safeguards are strictly followed must be decided on
case by case basis. Regarding Narco Analysis, as it is an invasive test, its
investigative use does not violate right against torture and ill treatment and mental
privacy. However The Narco Analysis test being an invasive procedure, its results
may not be used as evidence in trial.

It is true that evidence based on Forensic Psychological Tests suffer from

many disparities. But that is not confined to these tests alone. When we analyze
scientific evidence based on forensic science it could be seen that, the forensic
science disciplines exhibit a wide variety with regard to methodologies, techniques
used, reliability, error rate and general acceptability. Some disciplines are laboratory
based,5 whereas some are based on expert interpretation like bite marks, finger prints
etc. In fact, Forensic Psychological Tests come under the latter category. Though
analytically based disciplines may have an edge over those forensic science evidence
based on expert interpretation, it is not possible to assume that scientifc evidence in
all fields have high accuracy.6 There are significant variations among the disciplines

5. Toxicology, Drug Analysis DNA Analysis etc.

6. The Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening
Forensic Science in the United States: A Path Forward, National Research Council, August
2009, p.7, available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (accessed on

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and within the disciplines. This is one of the important issues and major problem in
the forensic science community.

The simple reality is that the “interpretation of forensic evidence is not

always based on scientific studies to determine its validity.”7 Though research may
have been done in some disciplines, there is immense shortage of peer reviewed,
published studies establishing validity and scientific basis of many forensic
8
sceinces. It may also happen that some forensic science disciplines which may have
been considered as exact scinece may later raise doubts as to its reliability. For
instance, for nearly a century, finger print identifications had been viewed as exact
science and as a valid tool in linking a suspect with a crime. Finger print examiners
had been comparing partial latent finger prints found at crime scenes to inked finger
prints taken directly from the suspects. Recently suggestions are made that latent
finger print identifications may not be as reliable as it was previously assumed. 9
Similarly, if we take the case of bite marks, tool marks etc., it could be seen that most
of these techniques were developed in crime laboratories to aid in the investigation.
Research as to their scientific foundation or limitation was never a top priority. 10
These tests are applied because the practioners in this field work hard to improve
their methodology and that the results from other evidence have been combined with
these tests which gave confidence to the scientists as to their probative value.11 In
fact, with the exception of nuclear DNA analysis, no other forensic science technique
has shown accuracy with certainity and consistency.12 In short, it may be stated that
interpretataion of forensic evidence is not infallibale.13
Similarly, Subjective bias and errors 14 are also not confined to Forensic
Psychological Tests. In any field, the findings of forensic experts are vulnerable to

05/09/2017).Even among the disciplines based on expert interpretation, there are important
variations.
7. id. at p.8.
8. ibid.
9. id. at p.43.
10. id. at p.42.
11. ibid.
12. ibid. Even when DNA in forensic science was first offered as evidence no concerted efforts
were made to test the reliability of the test and law enforcement officials believed in the
scientist‟s ability to withstand cross examination in court as sufficient to demonstrate the
reliability of the test.
13. id. at p. 87.
14. There is dispute even among scientists as to what constitute error. Regarding bias, it may be
stated that no forensic science discipline is spared of it. Cognitive bias due to willingness to
ignore base rate information or tendency for conclusions to be affected by how the question is

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contextaul and cognitive bias. 15 Even competent experts may make unintentional
errors. 16 In fact, false sense of significance attached to scientific evidence, bias,
incompetence and lack of internal controls for the scientific evidence presented in
trial are not confined to Forensic Psychological Tests alone, but are genarlly
applicable to all branches of forensic science.17
It is also to be noted that just because these tests are severely criticized, it
does not mean that they should be banned or discarded.18 Even in Selvi, the Supreme
Court did not hold that the tests are scientifically invalid.19 In fact, when considering
ordinary interpretative procedures, these tests are less subjective in nature. 20 Not
only, now police is frequently using these tests and new tests like Layered Voice
Analysis, Suspect Detection System are also emerging. After 9/11, the world has
witnessed the emergence and re-emergence of these tests. 21 It is stated that these
technologies have very much importance in the fight against terrorism.22

It is stated that the use of these tests would reduce police using torture and
third degrees methods. 23 These tests are also better than the deceptive practices
presently employed by the police in getting confessions.24 It is even stated that use of
more scientific techniques by the police would result in increased self respect and a

framed or how the data are presented or due to common imperfection in our reasoning ability etc.
are common for all forensic science disciplines. Contextual bias is also common in all forensic
science disciplines. For instance when an instruction has been given to the examiners that the
suspect has confessed the crime, a research study has shown that all the finger print examiners
gave the report that the sample matches with the source. So what is required is that serious
efforts must be made in mitigating this problem and initiatives must be taken to make scientific
investigations as objective as possible.id. at p.47.
15. ibid.
16. ibid.
17. Errors due to laxity of standards of laboratories, lack of quality control measures, lack of training
and education of forensic scientists are common to all forensic disciplines. Innocence project of
2008 had documented instances of both intentional and unintentional errors that have led to
wrongful convictions. For instance in forensic reports, falsified results may be given and
misinterpretation of evidence may be there. In the court room, there may be suppression of
exculpatory evidence; providing statistical exaggeration of the results of the test and providing
false testimony about the test results may also happen. See id. at p.37.
18 . Jerome H. Skolnick., "Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection,"
Vol. 70(5), The Yale Law Journal, 1961, pp.694-728 at p.721.
19. Anusree.A, “Forensic Psychology Tests in Criminal Investigation: Need for a Comprehensive
Legislation,” Vol.1 (3), International Journal for Research in Law, April 2016, pp.174-193 at
p.190.
20. ibid.
21. supra n. 1.
22. ibid.
23. supra n. 18 at p.724. See also, supra n. 19.
24 ibid.

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heightened feeling of professionalism in police department which in fact would result

in reluctance to resort to violence which is considered as “characteristic of lower
social class.”25 Apart from that, it is also stated that these tests also have as one of its
important objectives to exonerate the innocent.26 It is noteworthy that none of the
commissions or committees which have studied about these tests has recommended
for its abolition.27 They have only recommended for regulation of these tests. At this
juncture, it is also important to note that, even Selvi28 decision has also not prohibited
the tests as such and has left the room for conditional application of the tests for the
purpose of criminal justice administration.

It is also important to note that, increase in crime rate, use of technology in

commission of crime, emerging role of victimology in criminal justice system,
emergence of research in the field of Forensic Psychology and neuro science 29 call
for scientific orientation of criminal justice system. Moreover, the trend of different
countries in the world, is also neither per se ban nor per se admissibility of these
tests. The study has revealed that Forensic Psychological Tests must earn its
admission in court. But it is also important to note that most of the tests are in the
stage of infancy. At the same time, these tests are also not shown as totally invalid
and untrustworthy. The courts in most countries are trying to balance the principles
of opinion evidence, hearsay evidence, and right of the accused and public to access
to benefits of latest scientific advancements. The courts also try to balance accused‟s
right against self-incrimination and right to fair trial and also public‟s right to have
efficient investigation and prosecution of offenders. It is also important to note that

25. ibid.
26 . The empirical study conducted by the researcher also confirmed this. The researcher has
conducted a survey among investigating officers and also had interviewed the accused who
were subjected to these tests.
27 . supra n. 19 at p.192.
28 . Selvi v. State of Karnataka, (2010) 7 S.C.C. 263.
29 . Research projects are emerging in Neuro Imaging Techniques which had witnessed
investments from various foundations and Government agencies. The John D. and Catherine T.
MacArthur Foundation has invested $10 million in 2007 to start a Law and Neuroscience
Project in USA. In 2011 the Foundation renewed its commitment with a $4.85 million grant to
sustain the Research Network on Law and Neuroscience. These institutional commitments not
only foster dialogue and research, but also send a strong signal that this is a field of great
possibility. An additional technology to read brain function, namely Functional Near Infra Red
Imaging is also being explored. See, Francis X. Shen, “Neuroscience, Mental Privacy, and the
Law,” Vol. 36(2), Harvard Journal of Law and Public Policy, 2013, pp.654-713 at p.661.

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accused „s right to presumption of innocence , self-incrimination and right to fair trial

and right to legal advice also entitle him to voluntarily submit to these tests. In these
circumstances, assimilation of the tests in the criminal justice system with proper
safeguards is the most appropriate one. Moreover, the rules of evidence also changes
with time and it has taken place in many common law countries including England.
Hence in India also legal reforms must take place keeping in pace with the needs of
the society.

The study has revealed that presently there exists no legislation in India,
governing Forensic Psychological Tests. The regulation of forensic psychology
practice in the country, is also in a dormant state. Only law governing the Forensic
Psychological Tests are the guidelines in Selvi. But the guidelines are confined to
Polygraph, BEOS and Narco Analysis Tests. It is also submitted that even Selvi is
criticised on various legal, constitutional and ethical grounds. It is also doubtful
whether provisions of The Code of Criminal Procedure dealing with investigative
powers of police could be extended with respect to these tests especially in the wake
of Ritesh Sinha decision.30 Hence there exist lacunae of law in this regard.

Since most of the human rights are involved while administering the tests,
the law regulating Forensic Psychological Tests must be both foreseeable and
accessible. Foreseeability requires that for the law to have the quality of law, it must
have sufficient clarity as to the circumstances in which and also the authority by
which the power has to be exercised. Accessibility requires that it must provide
adequate safeguards to prevent abuse and misuse. Presently only the accessibility
requirement is satisfied as far as Forensic Psychological Tests are concerned. Even
with that, it is doubtful, whether the guidelines are applicable with respect to tests
other than Polygraph, Brain Electrical Oscillation Signature Profiling Test and Narco
Analysis Test. Hence, there is an urgent need for a comprehensive legislation
governing the administration of the Tests. It is important that the prerogative of the
person to be subjected to these tests should not be left to the discretion of the

30. Ritesh Sinha v. State of U.P., (2013) 2 S.C.C. 357.

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executive31 and hence it should have the backing of law for not being declared as
unconstitutional. .

It is true that in the absence of specific legislation, governing admissibility of

Forensic Psychological Tests, the rules of evidence would provide proper guidelines
as to the admissibility of the tests. If the results based on the tests are admitted
without proper safeguards, it may unduly interfere with rights of the defendants. At
the same time excluding such test may unduly interfere with law enforcement as
most of the tests are found to be invaluable investigative tool. It is submitted that
both per se exclusion and unrestricted admission may result in injustice. It is also
found that, Selvi has made a disparity in favour of prosecution by allowing the test
results to be admitted in evidence for the purpose of Section 27 of Indian Evidence
Act. In fact, the accused is also entitled to the benefit of the test. If the evidence is in
favour, he must be able to use that evidence so as to present his defence in an
efficient manner. Hence expert evidence has to be evaluated in a contextual 32and
principled manner33 that is reactive34 to developments in science.35 This implies that

31. Monika Garg, “The Concept of Narco Analysis in View of Constitutional Law and Human
Rights,” Vol. 1, International journal of Multidisciplinary Educational Research, June 2012,
pp.158-167 at p.164, In Ram Jawayya Kupur v. State of Punjab, A.I.R. 1955 S.C. 549, the court
had held that executive power could not infringe upon the constitutional rights and liberty of the
citizens and in the absence of law, the intrusion upon fundamental rights would be considered as
unconstitutional. The use of the tests by law enforcement officials could also be considered as
the exercise of executive power and comes under general investigative powers.
32. Contextual implies that admissibility must be evaluated based on the nature of the proceedings
whether civil or criminal or jury trial or trial before judge; the purpose for which it is tendered
like whether it is to assess liability, to prove an element of an offence etc; the availability of
safeguards to limit the potential prejudice like notice, adversarial experts, effective cross
examination etc; and who has tendered evidence like state or accused. See, Jared Craig and
David Wachowich, “Neuroscience as Expert Evidence in Canadian Courts,” (Paper Presented at
Legal Education Society of Alberta , University of Calgary, Alberta, 16 March, 2014), pp.1-33 at
p.14,available at https://phil.ucalgary.ca/ma nageprofile//sites/phil. ucalgary.ca.mana geprofile
files/ unitis/publications/1-5564087/Jared_ Craig_David_ Wachowich_ Neuroscience_
as_Expert_Evidence_in_Canadian_Court.pdf (accessed on 08/11/2017).
33. In criminal law context, rights of the accused are always weighed against the interest of the state.
The test is dependent on the idea of heightened concern of the contemporary society regarding
devastating injustice in wrongful conviction and general disgust against punishing innocent. This
means that court must allow greater leniency in assessing evidence provided by the accused to
facilitate full exercise of the constitutional right to defence, only excluding that evidence where
its probative value is substantially outweighed by its prejudicial effect. But prosecution evidence
is to be scrutinised with increased rigor, especially where such evidence speaks to ultimate
issue.id. at pp.14-15.
34 . Is reactive to developments in science, is a general principle of evidence that all probative
evidence should be admissible, absent a clear basis in law or policy to exclude it. ibid.

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all probative evidence must be admitted unless there is a law or policy excluding it.
Hence a case by case approach with discernable trend towards admissibility of
Forensic Psychological evidence must be the attitude of the courts. Hence all non-
invasive Forensic Psychological Tests may be admitted as corroborative evidence if
other independent evidence are in place so that the interests of the accused as well as
the interest of the state in seeking just verdict is adequately protected.

Invasive Tests like Narco Analysis may be used only as an investigatory

tool, as none of the validation studies so far made has recommended the forensic use
of this Test. It requires further elegant, in-depth and continuous research to confirm
the reliability of the test results and the universal acceptance of the test in introducing
it before the justice dispensing system in our country. Till such time, the results of
the test may be used only as investigative aid. A comprehensive law governing these
tests with specific legitimate purpose accompanied by adequate safeguards to the
accused and remedies if rights are infringed is the urgent need of the hour.

9.2 Suggestions
The noninvasive tests may be conducted only with respect to offences
punishable with more than 2 years imprisonment and also with fine. Invasive tests
may be conducted only with respect to offences punishable with morethan 10 years
imprisonment or life imprisonment or death penalty or offenses affecting women and
children. Consent of the subject need not be insisted in the case of administration of
non-invasive tests. With respect to invasive Tests like Narco Analysis, only after
getting informed consent from the subject, the test may be conducted. Narco
Analysis Test be conducted only in hospitals or in institutions, where the conditions
as required by Indian Society of Anesthetists are ensured. Along with the final report
an affidavit as to the satisfaction of the requirements in this regard must also be given
by the Director of Forensic Science Laboratory. All the tests are to be conducted only
after getting court order. In criminal investigation settings, Forensic Psychological
Tests may be used as investigative aid and at trial stage the tests other than Narco

35 . id. at p.16. This approach may not be confined to Canadian courts. It should be made equally
applicable to other courts in different jurisdictions while they consider admissibility of scientific
evidence.

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Analysis and hypnosis may be used as corroborative evidence if proper safeguards

are in place, while the tests are conducted. There can be a comprehensive legislation
governing Forensic Psychological Tests.

9.2.1 Suggestions Based on Information Obtained Through Filing Application

Under Right To Information Act
All forensic science laboratories in India shall have forensic psychology
division. In Central Forensic Science Laboratory Pune and Kolkata, the division must
be made functional. It is also suggested that the laboratories having forensic
psychology division may also start Brain Electrical Oscillation Signature Profiling
Test and Layered Voice Analysis Test.

To ensure more reliability and transparency, it must be ensured that lawyer

must be present while the tests are conducted. It is also suggested that if the subject is
unable to appoint a lawyer, a lawyer must be appointed at the expense of the state.
More psychologists may be appointed in the laboratories where it is required. More
emphasis must be given to research and training of Forensic psychologists. There is
also a need for putting in place a proper feedback mechanism.

9.2.2 Suggestions for Amendment in Existing Legislation

The Code of Criminal Procedure may be amended so as to confer inherent
powers upon subordinate criminal courts to make orders in the interest of justice.
Section 45 of Indian Evidence Act may be amended to make opinions of Forensic
Psychologists as relevant facts. Section 293 of The Code of Criminal Procedure may
also be amended to include forensic psychologists as scientific officers. It is also
suggested that Explanation A to Section 53 of The Code of Criminal Procedure may
be amended to include Psychological Tests also.

9.2.3 Suggestions for the Improvement of Forensic Science Service

Malimath Committee, Menon Committee and another two member
committee in 2010, have recommended for the improvement of forensics in the
country. It is submitted that these recommendations may be implemented for the
improvement of Forensic Science Service.

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It is suggested that there should be more networking and coordination

between State and Central Forensic Science Laboratories so as to improve their
efficiency in knowledge generation and also in their functioning. In many reports
which dealt with forensics there was suggestion to the effect that, Forensic Science
Laboratories should be declared as “scientific organization,” though they may
continue under home department. This would ensure conducive scientific atmosphere
so that scientists with good talents may be attracted and retained. Apart from
performing their traditional forensic science work, they must also cater to the overall
scientific and technological needs of criminal justice administration. The viability of
adopting this suggestion in Indian scenario may be considered seriously.

Policy initiatives must also be there so as to bring forensic science at the

centre of criminal investigation with efficiency and accountability and also in cost
effective manner. The Policy decisions must give emphasis to training, accreditation,
standard setting and professionalism and also to research and development in
forensic science arena. Union and State Governments must take initiatives to
improve the infrastructure, manpower and other facilities in Forensic Science
Laboratories so that country could have crime laboratories comparable to the best in
the world. Central Government must also make sponsorship for collaboration of
science and technology for effective criminal justice administration. For this there is
a need for bringing criminal justice administration under plan budget allocation.
Budgetary allocation must be reviewed to ensure improvement forensics and
availability of sufficient funds.

Government must also encourage validation studies of various scientific tests

so as to ensure their reliability for acceptability in courts. The validation study on
Brain Electrical Oscillation Signature Profiling Test conducted by Technology
Information Forecasting and Assessment Council in collaboration with Directorate of
Forensic Science Gujarat in 2006-2008 is worth mentioning in this regard. It is
suggested that such validation studies may be pursued with respect to other Forensic
Psychological Tests. For this purpose public funding initiatives leading to research
programmes in Forensic Psychological Tests may be started.

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To improve their quality and efficiency, forensic science laboratories must

have tie up with other scientific organizations and advanced laboratories of national /
international importance. There must be an exchange of knowledge and skill between
these organizations. An internal and external quality assurance system must also be
established for improving the efficiency of forensic science laboratories. It is high
time to introduce mandatory certification of forensic science practitioners in the
country. Initiatives must be taken for accreditation of all forensic science laboratories
by National Accreditation Board of Testing and Calibration Laboratories. Feedback
mechanism must also be there to determine the efficiency and pitfalls of Forensic
Science Service. The practice adopted in Tamil Nadu, as stated by the two member
committee in their report on „Forensics‟ in 2010 is worth mentioning in this regard.
In the report it was stated that, Forensic Science Department of Tamil Nadu is unique
in the country in this regard. The laboratory gets a copy of the judgment of every
case, wherein the report of the forensic science laboratory, has been taken on case
file. It is suggested that this practice may be adopted in other forensic science
laboratories also. In every case wherein the report of the laboratory is considered by
the court, the prosecutor‟s office may take initiative to send a copy of the judgment
to the concerned forensic science laboratory. This would really improve the
efficiency of the whole system.

Apart from this, the forensic psychology practice must be regulated.

Licensing procedure must be made mandatory. There must be a regulatory body for
regulating practice of forensic psychologist which prescribes ethical standards for
them and enforce them in the event of their violations. Till such time, the ethical
guidelines laid down by Indian Association of Clinical Psychologists (IACP) and
National Academy of Psychology (NAOP) may be made applicable to forensic
psychologists also. A comprehensive legislation for governing Forensic Science
Service which shall have provisions regulating forensic psychology service is the
need of the hour.

More emphasis must be given to improve the standards of forensic

psychologist, like provisions for continuing education progarmme, training as to
keep abreast with current developments, promoting research etc. The institutions like

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National Institute of Criminology and Forensic Science, Delhi and Gujarat Forensic
Science University in collaboration with Directorate of Forensic Science, Gujarat
may take initiatives in this regard. These institutions may also give training to
lawyers, judges, police and other investigating agencies so as to give them awareness
regarding this branch of forensic science discipline. Forensic Science can be made a
subject in legal curriculum, so as to create awareness among lawyers and judges
about the advances and utility of this branch of learning in legal field. Initiatives
must also be taken to improve co-ordination between police officers, forensic
scientists, lawyers and judges in training and operation.

It is also important that forensic science community requires strong

governance to adopt and promote long term agenda to strengthen the forensic science
disciplines. For this purpose Directorate of Forensic Science Services must be
provided with teeth and nail to regulate forensic science service in the nation at large.
9.2.4 Suggestions For the Improvement of Investigating Agencies
1. Steps must be taken to improve the professional competency of investigating
officers. More emphasis must be given to training in scientific investigation,
psychology and human rights. Hence in service training must be given
importance.
2. A liaison between scientific officers and police must be made since the
beginning of investigation. More facilities must be provided to the Regional
laboratories so as to avoid delay in forensic analysis.
3. As excessive work load is the main problem faced by investigation agencies,
Law and Order wing must separate from Investigation Wing. So urgently it
must be implemented.
4. Inadequacy of staff, lack of infrastructure etc., are raised as other difficulties
faced by the police. Steps must be taken to appoint more staff and also
provide more infrastructure facilities.
5. As interrogation is inevitable in any type of crime investigation, the service of
psychologist must also be made available in necessary cases. They can help
police to decide as to cases in which police may go for Forensic
Psychological Tests.

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It is suggested that a law governing the Forensic Psychological Tests must

also take all these aspects into consideration and the remedial measures for the
violation of human rights must also be stipulated, so that the liberty of the citizens
are not put in jeopardy.

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