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| Legal tenability suspect |
Suhas Chakma Director, Asian
Centre for Human Rights |
The
narco-analysis test conducted on Abdul Karim Telgi
on February 11 2004 has created a stir. The
question is whether this form of probe will stand
the test of legal tenability in the administration
of criminal justice. One of the cardinal
principles of administration of criminal justice
is the maxim, nemo tenetur seipsum accusare-that
"no man is bound to accuse himself". The
protection against self-incrimination is
recognised under Article 20(3) of the Constitution
which states "no person accused of any offence
shall be compelled to be a witness against
himself". Article 14(3)(g) of the International
Covenant on Civil and Political Rights also
provides the right "not to be compelled to testify
against himself or to confess guilt". Does
narco-analysis violate the protection against
self-incrimination? India has no previous legal
precedent on the use of "truth serum", although
polygraph test and brain finger printing have been
used. In December 2003, the prime accused in the
Arun Bhatt kidnapping case, Jeetu Patel moved the
National Human Rights Commission and the Supreme
Court against a Gujarat High Court directive to
conduct a narco-analysis on him. Patel objected on
the grounds that he was a cardiac patient and was
not in agreement to conducting the narco-analysis
on him and therefore it violates Article 20(3) of
the Constitution. |
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The Fifth Amendment
of the US Constitution also provides protection against
self-incrimination by stating "No person shall be
compelled in any criminal case to be a witness against
himself". Though the permission of the court and consent
of the subject have been held as fundamental in the US,
there are controversies and disagreement over the use of
various drugs-scopolamine, sodium amytal, and sodium
pentothal-for narco-analysis. The New Jersey Supreme
Court set the case law in the case of State v. Pitts in
1989 by disallowing the results of a sodium amytal
interview, ruling that it is not a valid scientific
technique.
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The case law on the
use of polygraph evidence is instructive for
narco-analysis. Polygraph tests in the vast majority of
jurisdictions follow a stare decisis (let the precedent
stand) pattern in which they are not admissible (per se
inadmissibility) at any criminal trial unless there has
been a prior stipulation by both prosecution and defence
to agree to submit the results of such examination. Both
sides should agree on the undisputed expertise of a
single examiner, or that the prosecution should use its
own examiner and the defence should use its examiner,
but the power to choose rests with the defence, a
phenomenon referred to as the "friendly examiner"
syndrome. The law is more complicated than per se
inadmissibility. Because of stare decisis and the Fifth
Amendment, the state cannot require a criminal suspect
to submit to a polygraph, even under some pre-trial
stipulated agreement. If there is a state-sponsored
examination, it must be voluntarily taken and then if
the results are negative, they are generally
inadmissible because the test was given under coercive
circumstances. Therefore, only positive test results
ever get seen at trial. For this reason, legislators in
about half of States in America have prohibited
polygraph evidence in criminal cases at all, for any
reason, stipulated agreement or otherwise. Although
courts in India are increasingly attaching greater
importance to forensic evidence these days, the use of
polygraph tests, brain finger printings, etc are usually
viewed with suspicion. Most forensic laboratories in
India are attached to police departments. Even in normal
medical examinations such as autopsy, many medical
professionals skirt the principles of the profession
because of coercion from the police to doctor the
reports. Therefore, the agreement of both the
prosecution and defence on the undisputed expertise of a
single examiner or a group of examiners for
narco-analysis will remain crucial.
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The narco-analysis
test on Telgi and others may set legal precedents, but
the disagreements among the scientists over the use of
various truth serums and results cannot be
underestimated in the administration of criminal
justice. Narco-analysis test report itself should not be
considered as evidence for conviction unless other
evidence corroborates it. Telgi has reportedly mentioned
one "Bhujbal". But, the SIT is not clear whether Telgi
referred to Maharashtra's former Deputy Chief Minister
Chagan Bhujbal or his nephew, Sameer Bhujbal. It is not
the statements obtained through narco-analysis test, but
evidence collected through investigation, which will
stand ultimate judicial
scrutiny.
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