Introduction:
Law is a dynamic field that evolves as the society evolves and since the interpretation of the law is in the interest of greater good, its nature remains adaptive to the changes in the society.[1] Use of scientific technology is one such recent addition to the legal system in India in the 1990s. Technological advancements happen today at a heightened pace introducing new technology or devices that not only ease the way of life of humans, but are also aiding the justice system, both in civil and criminal jurisprudence. While civil law employs technology pertaining to document authentication or handwriting verification primarily, forensic technology is widely applicable in the criminal justice system. The crime itself has evolved due to technology and with growing numbers of cybercrimes and organised crimes, it’s only fair that technology is employed to combat crime as well.[2]
A cross-disciplinary field of neuroscience and law often referred to as “neurolaw” establishes a clear link between scientific technology and law, introducing technological advances to ascertain criminal responsibility. This field has contributed to the law enforcement through its techniques of Deception Detection Tests (DDT) like Brain mapping, P300, Hypnosis, Narco analysis and polygraph tests which aid in crime detection within criminal jurisprudence and evidence laws.[3] These help with the primary task of a scientific investigation of a crime, ascertaining reasonable guilt from a suspicion.[4] While these techniques test the various aspects of memory and behavioural patterns, their validity and application are tested widely by referring to them as the “rape of the human mind”, essentially as an element infringing the privacy of the human mind and conscience.
Neuroscience Techniques of Forensic Science and Crime Detection
The central theme of neuroscience is to read the brain and mind through it.[5] Forensic scientists, employing neurolaw technologies such as neuroimaging which records various patterns of the brain images in an attempt to interpret the behaviour of the person. This behavioural interpretation is used in the criminal justice system for crime detection and to deduce evidence and guilt of the accused. However, considering that this technology requires invasion of the human mind, consent of the person plays a huge role in the validity and admissibility of this as evidence in court or as part of the investigation. Within this article, we will closely examine two widely used and infamous techniques, the Narco analysis and polygraph test.
Narco Analysis
The term Narco analysis, deriving its origins from the Greek word “narkc” that means anaesthesia, is a psychotherapeutic technique that employs psychotropic drugs, more specifically barbiturates[6] which makes the subject less inhibited, in a hypnotic state making him more likely to divulge information which he normally wouldn’t, if in a conscious state.[7] The administered dose of the barbiturate dissolved in water is dependent on the sex, age, health and physical condition of the subject.[8] The test was primarily used by therapists on psychiatric patients suffering from neurotic illnesses to identify the cause, it is now being used as a tool by the police during an investigation.[9] The first narco test in India was conducted in 2001 on an individual associated with the offences committed by Veerappan.[10] Despite the belief that the test could help in investigation of cases which may not have the requisite amount of evidence to ascertain the blame, it is widely contested in the legal and science fraternity as to its violation of privacy and human rights of the subject.
Polygraph Test
While narco analysis is a relatively new test, polygraph test marked the first use of neurotechnology in criminal jurisprudence.[11] Though it is referred to as the lie detector test, the name is a misnomer as the test does not detect your lie but detects your behaviour. The test records involuntary responses of the body of the subject such as blood pressure, muscle movements and respiration, where the hyper-arousal state of the subject of being caught in a lie is picked up by the polygraph test results.[12] Developed in 1939 by the efforts of the neuroscientist Leonard Keeler, who devised the first polygraph technique called the Relevant-Irrelevant technique (R-I) to mix questions relevant to the subject matter with irrelevant ones.[13] The other more accurate and structured techniques are the Control question method of recording behaviour of the subject to different questions and the Backster school technique, introducing time bars to the responses to the questions.[14]
Admissibility of the Tests
It is argued that the use of these scientific tests of fact-finding to gather evidence can redefine the criminal justice system by increasing the rate of prosecution of the guilty.[15] Those in support of the administration of Narco and polygraph argue that they serve a utilitarian purpose, for the greater good of delivery of justice. It is argued that it is a battle between the individual right of the accused and the interest of the public. However, for the admissibility of these tests, the following aspects are taken into consideration:
- Consent and consonance with right to privacy and right against self-incrimination
- Violation of human rights
- Reliability of the tests
Consent
An important factor which determines the legality of the test is consent, subject to article 20(3) of The Constitution, which grants the fundamental right against self-incrimination.[16] It is based on the legal maxim, Nemo teneteur prodre accusare seipsum, “no one can be compelled to accuse himself”. Therefore, these tests which claim to ascertain the guilt of the accused is subject to the consent of the person instead of his right to self-incrimination. To attract protection under this right, three ingredients must be present:
- It is a protection granted to only the accused of the offence
- The accused must be compelled to be a witness against himself
- There must be a compulsion or absence of consent.
In the Nandini Sathpathy case,[17] the court established the right to silence of the accused and states that the right extends not just trial procedure but also during the police investigation. Therefore, even is for investigation, obtaining consent is a requisite. The supreme court, in Smt. Selvi & Ors. v. State of Karnataka[18] held that these tests cannot be administered in the absence of consent as personal liberty and Art. 20(3) are non-derogable rights. Courts previously had diverse opinions, while Madras high court in 2006 held that narco analysis does not amount to compulsive testimony,[19] Bombay High court in 2004 held that statements made during narco analysis are not admissible.[20] However, the Selvi judgement[21] states that in absence of consent, the test is illegal as it amounts to self-testimonial compulsion. However, where there is consent, the legality of the test has been upheld.[22]
Human Rights Violation
Many human rights activists and defence attorney contest narco and polygraph tests calling them primitive forms of investigation, involving the violation of the privacy of the mind, violating his right of privacy under article 21. The UN definition of torture has four significant aspects: must produce physical/mental suffering, it must be intentionally inflicted, to obtain information and must be inflicted by an official.[23] On paper, narco-analysis satisfies all four conditions of torture, effectively rendering non-consensual administration of the test as torture.
A classic case of how these tests could amount to torture and abuse of power is the Ferreira case,[24] where the accused was tortured in police custody, subject to narco analysis, brain mapping and polygraph test without sufficient reason and evidence to hint his involvement and by forcefully making him sign the letter of consent.[25] These scientific innovations, therefore, have, in some cases become tools of exploitation by the police, much less for justice delivery.
Reliability of the Tests
To add to the disadvantages of the tests, they are not 100% accurate and reliable either. These tests are subject to the limitations of the mental state of the subject. With narco analysis, some subjects, after administration become highly suggestive to questions, some retain the ability to deceive as the test is not foolproof with high accuracy. Further, slight mismatch in the dosage could adversely affect the brain of the subject, inducing a coma or even death.[26] Even with the polygraph test, there is a high margin of error because of factors like memory-hardening[27] and mental state of the subject. There are several ways to alter the results of the polygraph such as antidepressants and antiperspirant medication.[28] With a high margin of error, dangerous side effects affecting the health of the subject and violation of the privacy of the mind, the continued application of the test is contested.
International Perspective on the Legality
Despite their wide popularity in India, evidence procured from Narco and polygraph tests are not legal in many countries. Internationally, all scientific tests follow the Daubert standard of test:[29]
- The scientific technique must be refutable and testable
- Must have been subject to publication and peer review and approved
- The rate of error of such a test must be known and
- The technique must be accepted by the relevant scientific community.
The narco test, in the U.S., is not an accepted technique by the science fraternity and due to its potential violation of the fifth amendments rights of the U.S. Constitution and violation of Human rights, it was declared that the statements made under the influence of Sodium pentanol, the key drug for narco analysis are unconstitutionally coerced, therefore inadmissible.[30] The code of Medical Ethics[31] also prohibits physicians to aid/abet torture, therefore discrediting the practice. With regards to the polygraph test, the circuit court in Frye v. The United States[32] held that the test is not sufficiently established and received acceptance in its relevant field. Many state and military courts maintain a per se rule of excluding evidence obtained from a polygraph test from the admissible evidence of the trial.[33]
Conclusion
While the use of technology in the criminal justice system has been promising, prolonged use only highlight how the tests are violative of the privacy of the mind, against constitutionally set principles, have dangerous side effects, high error margin questioning its reliability and in some cases amounts to torture as well. Further, with the latest Supreme Court judgement, these tests do not stand a chance without proper consent as per Section 90 of the IPC from the subject. The unreliable nature of these tests do not make them an alternative to traditional crime detection methods and while it is important that justice is delivered, the path of reaching the goal must also be legal, in the spirit of the law. Therefore, technology still has a long way to go to be acceptable methods of assistance to the Indian criminal justice system.
[1] Benjamin Cardozo, The Nature of the Judicial Process, 65 (Yale University Press, 1921).
[2] A.S. Dalal & Arunava Mukherjee, Constitutional and Evidential Validity of New Scientific Tests, 49 J.Ind. L. Inst., 529, 529 (2007).
[3] Wolpe PR, Foster KR & Langleben DD, Emerging Neurotechnologies for lie-detection: promises and perils, 5 Am. J. Bioeth. 39, 39 (2005).
[4] Dr. Ishita Chatterjee, Law of Forensic Science, 803 (2nd Ed. 2019).
[5] Idat 804.
[6] Rajni Nanda, Evidentiary value of Forensic Science with Special Reference to Narco Analysis Test, 7 INDIAN J.L. & Just. 158, 159 (2016).
[7] B. Umadethan, Medico-Legal Aspects of Narco Analysis, 2 NUALS. L.J. 21, 22 (2018).
[8] Supra 4 at 805.
[9] Supra 4 at 818.
[10] A. Abhudaya & G. Prithwajit, Use of Modern Scientific Tests In Investigation and Evidence: Mere Desperation or Justifiable in Public Interest, 2 NUJS. L. Rev. (2009).
[11] Supra 4 at 806.
[12] Supra 2 at 530.
[13] Quality Control Committee, Relevant/irrelevant (RI) Technique, British Polygraph Society, (Feb. 24, 2020), http://polygraph.org.uk/glossary/relevant-irrelevant-ri-technique/.
[14] Supra 4 at 852.
[15] Suresh Bada Math, Supreme Court judgement on polygraph, narco analysis & brain-mapping: A boon or a bane, 134 Ind. J. Med. Res. (2011), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3171915/.
[16] Indian const. art. 20 Cl. 3.
[17] Nandini Sathpathy v. P.L. Dani, AIR 1978 SC 1025.
[18] (2010) 7 SCC 263.
[19] Dinesh Dalmia v. State, (2006) SCC OnLine Mad 226.
[20] Ramachandra Ram Reddy v. State of Maharashtra, Bom HC: MANU/MH/0067.
[21] Supra 18.
[22] Supra 20.
[23] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1987), Art. 1.
[24] SAHRDC, The Ferreira Case: All That Is Wrong with Torture and Narcoanalysis, 45 Eco. & Pol. Weekly 13, (2010).
[25] Id.
[26] Ajay Kr. Barnwal & Dr. S.N. Ambedhkar, Narco-analysis Test: An analysis of various Judgements of Indian Judiciary, 19 IOSR-JHSS 52, 55 (2014).
[27] Sriram Lakshman, Narcoanalysis and some hard facts, Frontline (May 18, 2007), https://frontline.thehindu.com/the-nation/article30191389.ece.
[28] Polygraph Testing, Electronic Privacy Information Center, https://epic.org/privacy/polygraph/. Last visited on Nov. 8, 2020, 18:52 IST).
[29] Daubert v. Merrle Dow Pharmaceuticals, 509 U.S. 579 (1993).
[30] Townsend v. Sain, 372 U.S. 293 (1963).
[31] Code of Medical Ethics, Regulation 6.6, Chapter 2. Dr. Ishita Chatterjee, Law of Forensic Science, 845 (2nd Ed. 2019).
[32] 293 F. 1013 (D.C. Cir. 1923).
[33] Supra 4 at 862.
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