Spreading Wings of Forensic Science

“Forensic Science can never give us the answer, only evidence.”

— Michael Connelly

INTRODUCTION

Evidence remains the bedrock for logic and critical thinking. Forensics, a source of scientifically validated evidence, epitomises application of expertise gathered from various disciplines including physical sciences, social sciences and technological progressions. Thus, forensics as an applied discipline encapsulates knowledge gathered from various fields¹. Since ages, in common parlance, forensics is understood to assist courtroom proceedings, accordingly this subject remained limited to judicial settings as an aid to explore truth behind a fact obligatory for judicial decision making. This article delves upon exploring wider usage of forensic understanding beyond courtroom proceedings.

Forensics is not merely an expert opinion or technology driven findings, but it is indeed a mindset for logical and critical thinking necessary for decision making in any ecosystem including judicial settings. Forensic vision permeates probity in evidence-based argumentation ensuring admissibility of a fact. Forensic knowledge ensures procedural righteousness involved in any process which may be social, political, economic, legal or technological in nature. Forensic intelligence may help to expand the horizon of the discipline². In order to expand the wings of this niche subject, authors introduce new terminology such as “Community Forensics”, “Forensic Journalism”, Social Media Forensics, Environmental Forensics, Financial Frauds and Banking Forensic. Forensic aid is also coined to deliberate upon how this subject must be understood in the society at large for access to justice for helpless and marginalised sections of the society. It is humbly attempted to explain boundless dimensions of the proposed terms and their potential for ensuring the rule of law, promoting democratic values and right to dignified life and livelihood.

TRILOGY OF JUSTICE, TRUTH AND EVIDENCE: A BASELINE FOR DECISION MAKING

Irrespective of time and space since time immemorial, “Justice” remained the quintessence of life and liberty, and perception of miscarriage of justice constitutes the root cause of all kinds of disputes. The objective of investigation and criminal trial is to search for truth and to prevent miscarriage of justice.³ The trilogy of “Justice, Truth, and Evidence” constitutes the bedrock for ensuring responsive governance for building a just society. “Truth” behind a fact essentially assist the court in delivery of justice. However, both justice and truth are abstract phenomenon and “evidence” as a tangible tool helps in ascertaining truth and certifying fair trial. Thus, evidence with scientific vigour is the triumph of Truth leading to Justice. Forensics, an evergrowing discipline, evolved as a commixture of various disciplines of pure sciences and social sciences especially law, entering courtrooms in a spectacular manner. It has helped transforming the evidencing system with scientific temper, interlacing neutral and fair validation. Forensic science has come to symbolise procedural fairness in investigation and culminates in reposing faith in justice system. The neutrality, probity and scientific validity of forensic evidence establish admissibility in court of law which may be used virtuously either for inculpation (to prove guilt) or for exculpation (to establish innocence). Indeed, fairness in investigation is precursor to the right to fair trial, and forensics will further promote speedy trial by reducing conundrum and illuminating truth during appreciation of evidence.

JUDGMENT AND JUSTICE: AN INHERENT IRONY

A judgment is presumed to deliver justice, but in real world every judgment is not sine qua non to justice, justifying existential necessity for the doctrine of appeal in the designated higher court. One key significance of appeals, as a substantive right, lies in their ability to rectify errors and miscarriage of justice by re-examine the evidence, legal arguments and procedure followed in the lower courts.⁴ The quality and probity of evidence is the fulcrum for addressing the challenge of miscarriage of justice ensuring the right to fair trial and due process. Fair investigation has been least focused in jurisprudential discourse, but truly speaking procedural fairness in evidence collection remains a precondition to enabling fair and speedy trial. The Supreme Court has categorically observed that: (Vadivelu Thevar case⁵, SCC OnLine SC para 11)

“11. … it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of evidence necessary for proving or disproving a fact”.⁶

In judicial dominion, evidence may broadly be categorised as: (i) oral testimony, (ii) documentary, and (iii) material evidence (including bodily substances and other physical objects). Oral testimony especially eyewitness is age-old established evidence admissible in the courtroom. Considering several inevitable limitations of oral testimony such as personal vendetta, duress, misidentification, planted witness⁷, etc. there is a dire need for corroboration through circumstantial analysis to connect missing links of the chain of events for probing a crime incident.⁸ Forensic evidence being neutral (potentially used equally by the prosecution and the defendant) and enabled by scientific endorsement have emerged as a potent and reliable tool for corroboration. However, forensics as a discipline deserves de novo discourse keeping in view of epistemological and technological developments during the 21st century. The proposed academic endeavour will enhance forensic vision and temper in the society and ensure probity and transparency in decision making enabling public trust in democratic governance and administration of justice

DEFINING FORENSIC SCIENCE AND ISSUES IN TRANSLATION

Forensic Science, also known as Criminalistics if used for criminal adjudication, as a discipline entails the application of expertise of different fields. Ideally it is not a physical science but admixture of different disciplines applied for excavating truth behind a fact necessary for delivery of justice. Thus, a forensic expert per se need not necessarily be a scientist or technocrat, he may be an expert of other fields such as law, language, anthropology, and art.⁹ However, scientific methods and technologies largely used in forensics foster scientific potency in deducing expert opinion, which being neutral in character may be equally used by the prosecution and the defence.

Further, for various purposes the term “forensic science” has been translated in vernacular language in India but suitable words are yet to be coined. For example, in Hindi language two words are commonly practised for forensics: (Nyayalik) which literally means judicial, and (Nyaik) meaning legal. Neither Nyayalik nor Nyaik correctly represents forensics. Thus, there is a crying necessity for research in this field to develop terms in different languages. Similarly other English terms often used in this science need correct translation in vernacular dialects.

COMPULSORY FORENSIC INVESTIGATION: LAW IN THE MAKING

The existing legal regime in India provides optional usage of forensic technologies in evidence collection.¹⁰ Police is mostly reluctant to use expert opinion in criminal investigation and prefers for recording statements of witnesses having ample scope of misuse of discretionary powers and extraneous influences. Excessive dependence of justice system on oral testimony, to larger extent, results in miscarriage of justice by acquitting guilty and by convicting innocent people. Recognising potential use of forensic evidence in criminal justice administration, proposed criminal law under Section 176(3) of the Bhartiya Nagarik Suraksha Samhita, 2023 has mandated compulsory examination of crime scene in those offences where prescribed punishment is seven years or more. The impending legal necessity desires awakening not only amongst various vanguard stakeholders of criminal justice system (police, prosecutors, Judges, and defence attorneys), but awareness midst public-spirited individuals and legal identities (CBOs and NGOs), and mass media functionaries is equally warranted. A media reporter equipped with the basics of forensics will bring scientific exploration of crime reporting. There is a clarion call to spread public awareness through various actors about advantages of forensics in justice apparatus for achieving the goals enshrined under newly criminal legal regime recently introduced in the Indian Parliament. While India has made significant strides in the field of forensic science, there emerged striking necessity for greater collaboration amongst academic institutions, practitioners and industry to foster innovation, research, and skill development.

MARRYING FORENSICS WITH INDUSTRIAL PROCESSES

In modern era, forensics has huge potential for establishing procedural probity in several industrial processes. Diagnostic examination of various procedures involved in industrial processes for the purpose of validation may be conducted through forensic tools and probing mindsets. These areas may be many, counting a few like banking, environment, disaster, food and beverages, pharmaceuticals, data analytics, etc. Future research could focus on the development of more efficient algorithms of the analysis of forensic data with the assistance of artificial intelligence and machine learning. Keeping this standpoint into consideration, the prevailing definition and understanding of forensic science inherently needs reconsideration. In the extant article it is attempted for providing certain ingredients and terminologies to widen the horizon of forensic diagnostics.

NEWLY COINED BRANCHES OF FORENCICS AND ASSOCIATED TERMINOLOGY

For the purpose of redefining the scope of forensic science, we propose to create few branches for the subject with new terminology. A brainstorming at the level of the experts and professionals of various domains may also chart larger canvas for future expansion of usage of forensic science. Few branches and terminologies have been explained below, however, the list is only indicative and not exhaustive.

Community Forensics

The knowledge of forensic science must be made available for spreading public awareness especially for enabling the right to fair trial which is a globally recognised human right. Article 21 of the Constitution of India has enshrined right to fair trial as an intrinsic segment of the right to life. Confirming fair trial is essential for providing justice both for victim as well as the accused or a suspect. The idea of community forensics will provide tools for access to due process for delivery of justice for hoi polloi. Academia, media and public-spirited identities (mainly CBOs and NGOs and such institutions) may be instrumental for spreading public awareness. Forensic knowledge will foster scientific vigour in media reporting of crime. Similarly forensic based understanding of crime will sharpen the functioning of the public-spirited institutions to ensure the right to scientific and fair investigation. It may be considered for designing a brief course on Forensic Journalism for media professionals. Likewise, short-term online courses for imparting basic knowledge of forensics may be construed for the professional working in NGOs/CBOs or studying Social Works. This effort will develop community forensic warriors acting as pressure groups for compelling public authorities to use forensic technologies in crime investigations.

Banking Forensics

Jurisdictional boundaries have been melted in modern digital era posing daunting challenge for detection and adjudication of cyber crimes. The digital devices are the means and targets for such crimes. White-collar crimes have broadly replaced blue-collar crimes such as financial frauds and cheating, payment and refund frauds, phishing, money laundering, naming a few are posing consistent threats for law enforcers and policy-makers. Financial crimes bleed the governance and no one is safe in modern era from digital frauds and privacy intrusion. It is time to construe robust banking forensics to prevent attacks and cheating on financial institutions.

Environmental Forensics

The climate, environment and sustainability are intertwined concepts of global concerns. The pollution is the biggest enemy for the universe causing existential crisis for flora and fauna and human beings are no exception. The current regime for measuring different variants of pollution is inadequate aiding for determining culpability beyond reasonable doubt. Robust protocols for each type of pollution must be construed with scientific mindset and forensic vision. It is proposed to develop Environmental Forensics as an independent branch of forensics to perform this onerous task to ensure sustainability goals recently committed during G-20 Summit in New Delhi.

Social Media Forensics

In modern days, social media became integral part of everyone’s life challenging privacy domain and influencing decision making irrespective of purpose, time and space. Authenticity of information roaming on social media platforms poses great challenge. There is a dire need to facilitate consistent efforts for developing specific forensic tools to address the social media related challenges. Social media forensics may be a subset of cyber forensics for academic purpose.

Forensic-aid

The right to legal representation is a universally recognised human right.¹¹ Article 39-A of the Indian Constitution mandates an obligation on the State for providing equal justice and free legal assistance to ensure access to justice for the people.¹² This constitutional necessity was fulfilled by enacting the Legal Services Authorities Act, 1987 enabling creation of the Legal Services Authorities at the national, State and district levels. The term “legal aid” is used broadly and covers legal advice and assistance outside courts and legal representation in courts.¹³ The concept of legal aid has been designed not only to provide equality of access to law before courts and tribunals, but that it has also aspired to goals of social justice and transformation within poor communities.¹⁴

In Anokhilal case¹⁵, the Supreme Court of India has addressed the legal issue “whether, while granting free legal aid, the appellant was extended real and meaningful assistance or not”. Here, the expression “real and meaningful assistance” has wider connotation including subject knowledge and practical experience of subject related to legal assistance. The prevailing battery of legal experts engaged for justice system including prosecution, attorneys including engaged for legal assistance, and Judges are not adequately trained for forensic knowledge. Thus, in absence of acumen on forensic inputs, the concept of legal aid is essentially inept and inadequate. For bridging this gap, a new term “forensic-aid” is coined to bridge the gap of knowledge for enabling legal assistance to the needy by the State. Forensic-aid must be an integral component of legal aid, and a battery of experts on forensics and legal matters must be conjointly constituted as legal aid provided by the Legal Services Authority.

There are several other uncharted domains such as Vehicular Accidents Forensics, Disaster Management Forensics, etc. that may potentially revolutionise critical thinking for assorted decision making.

CONCLUSION

In the light of the discussion above, it is manifestly clear that forensic science has potential for enabling people for critical thinking and logical decision making. There is ample scope for interdisciplinary research to develop area specific branches of forensics. Public awareness on forensic science is the need of the hour. Legal Studies have already been introduced by education boards in India at the higher secondary level; on similar pretext, it is time befitting for introducing “Criminology and Forensics” as a subject to build forensic mindset of the young generation for critical appraisal of various challenges in life. The universities may also design elective courses on these subjects. Indeed, knowledge of forensics as a matter of right will collectively brace and enable the right to access to justice, scientific investigation, and fair and speedy trial.