Year : 2022 | Volume
: 8 | Issue : 2 | Page : 62--67
Challenges for expert evidence in the justice system of pakistan
Nouman Rasool1, Muzamal Rasool2,
1 Center for Professional and Applied Studies, Lahore, Punjab, Pakistan
2 High Court, Lahore, Punjab, Pakistan
Center for Professional and Applied Studies, Lahore, Punjab
Expert evidence is admissible under articles 59 and 164 of Qanun-e-Shahadat Ordinance, 1984 (Law of Evidence), in the courts of law in Pakistan. However, the enacted laws and judicial precedents are inadequate to help a trial judge to get an answer to the question about the reliability and credibility of expert evidence. The process of judicial scrutiny of the expert evidence is challenging in the absence of national guidelines/standards, nonaccreditation of crime laboratories, and poor scientific knowledge of judges and lawyers. Therefore, the judges encounter difficulty in evaluating the knowledge and skills of an expert, validity of principles and methodologies used, application of quality management system, relatability, and reliability of expert evidence. While facing difficulty in ascertaining the level of certitude of expert evidence, the courts accept the expert testimony only when it corroborates the prosecution's propositions, which is a kind of disservice to justice. The reliance of courts on expert evidence varies from case to case, which can be observed in the form of many sporadic judicial decisions.
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Rasool N, Rasool M. Challenges for expert evidence in the justice system of pakistan.J Forensic Sci Med 2022;8:62-67
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Rasool N, Rasool M. Challenges for expert evidence in the justice system of pakistan. J Forensic Sci Med [serial online] 2022 [cited 2022 Aug 18 ];8:62-67
Available from: https://www.jfsmonline.com/text.asp?2022/8/2/62/348650
The advent of science and technology cast a great impact on the dispensation of justice for reaching the truth during the trial, across the globe. The reliance of a justice system on modern methods for finding the facts in an investigation and prosecution has been in use since ancient times. Hundreds of innocent people have to serve in prison while the real suspect remained at large due to flawed identifications by eyewitnesses. The law and science enjoy the inevitable relationship as law always seeks the assistance of science to draw inferences from the evidence gathered during the investigation. The expert evidence produced by using new scientific technologies has been widely used in both criminal and civil matters. The trial judge has encountered a challenge to find the answer of relevancy and reliability of expert evidence. The cardinal rule of jurisprudence is to screen the potentiality of scientific evidence whether it conforms with generally accepted standards of scientific fraternity. The justice system is thought to be fair, reliable, and accurate, and any variation in evidence admissibility can reduce the efficiency of judicial proceedings. The scientific evidence has to face serious criticisms during trial before getting accepted by a judge to establish truth during the trial. For a judge, in addition to the traditional truth-finding role, he is supposed to be acquainted with at least the basics of the technology used in expert evidence. During the last three decades, science has changed its facet considerably, introducing new technologies for the interpretation of evidence. This makes the situation difficult for lawyers and judges in Pakistan as this fraternity has very little knowledge of science and technology. Therefore, the dependence of a court of law on scientific evidence during a trial is not of that extent which is in practice in developed countries. There is a lack of uniformity for the admissibility of expert evidence while trying a case in the judicial system, i.e., one type of evidence may be accepted in a case in one court but not accepted in another case by another court. This manuscript is written to critically analyze the admissibility, reliability, and validity of forensic/expert evidence in the justice system of Pakistan.
Legislation Regarding Expert Evidence
Expert evidence is the opinion of an expert on some collected piece of evidence relevant to the matter under trial in a court of law. It is a kind of inference drawn on somebody of facts or matter and is inadmissible directly. It is the duty of the jury or judge to analyze the relevancy and credibility of the evidence before considering it to determine a fact in the issue. This opinion is always drawn by a person, having specialized knowledge and experience, on observed or communicable data or material., The expert opinion must be expressly stated and is a kind of hearsay evidence, with the exception that the expert is not required to provide the source of the expert's knowledge. The expert is required to inform the court about sources, i.e., books, journal papers, discussions, manuals, etc., used to formulate his/her opinion.
In Pakistan, Article 59 of Qanun-e-Shahadat Ordinance 1984 (QSO, 1984) data deals with expert opinion. Its states
“When the Court has to form an opinion upon a point of foreign law, or of science/or art, or as to identity of hand-writing or finger impressions; the opinions upon that point of persons specially skilled in such foreign law science or art, or in questions as to identity of hand-writing or finger impressions-are relevant facts.”
This article explains that who could be an expert in the eye of law in judicial system of Pakistan. In the illustration of this article, it is explained that the opinion of a medical practitioner to describe the cause, manner, and mechanism of death is an expert opinion. In another illustration, it is narrated that opinion of a handwriting expert on a questioned document is an expert opinion and is admissible in a court of law as a piece of evidence.
Article 164 of the same act also deals with the admissibility of the opinion which is produced using modern technology during judicial proceedings. This article states:
“In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.”
The spectrum of this law is quite a broad id est any inference drawn using any modern technology or field of science is a relevant fact and is admissible in judicial proceedings. As the judges are not reasonably conversant about advancement on new technology, so they usually rely upon such evidence only when it corroborates other facts and statements of the victim(s) and witness(es). Hence, in the abovementioned articles, the commonality is that the opinion should be based upon expressly stated observed or assumed facts based upon scientific knowledge.
Section 3(f) of Investigation for Fair Trial Act, 2013, defines experts as:
“Expert means a person qualified or trained or experienced in conducting surveillance or interception who is nominated by the applicant or the Federal Government as an expert for the analysis of the intercepted material.”
In the Criminal Procedure Code (CrPC, 1898), the admissibility of a handwriting expert, fingerprint expert, firearm expert, and serologist's report is explained u/s 510, which states:
“Report of Chemical Examiner, Serologist etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government [or of the Chief Chemist of Pakistan Security Printing Corporation, Limited] or any Serologist, fingerprint expert or fire-arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceedings under this Code: Provided that the Court may (if it considers necessary in the interest of justice] summon and examine the person by whom such report has been made).”
Section 510 of CrPC, 1898, explains the procedure of admissibility of reports of experts in handwriting, fingerprint, firearms, and forensic serology. A forensic DNA analysis report is also admissible under this section considering DNA as a chemical. This section explains that the expert report is per see admissible, i.e., there is no need to examine on voir dire, if not objected by the adverse council with substantial reasoning. As the legal community is not good at understanding scientific terminologies and statements, usually made in an expert report, so it is the responsibility of an expert to explain his findings simply and straightforwardly to assist a judge in drawing inferences about expert opinion. However, due to limitations of science and standards, sometimes it is not easy to give a simple/straightforward opinion that can easily be comprehended by a judge. Moreover, the understanding of a judge mainly relies upon his prior basic scientific knowledge, which could help him in making the findings of the report clear for himself. In Pakistan, the educational system is not much helpful for judges getting the education of basic sciences in high school and colleges. Moreover, in law degrees, the curriculum contains very little material related to forensic sciences and other technologies used to interpret evidence.
Admissibility Versus Reliability
The scientific and technical expert evidence is admissible under articles 59 and 164 of QSO, 1984, but nothing is mentioned in enacted laws about the qualification, knowledge, or experience of the expert. Besides, an expert is poorly defined in section 3(f) of the Investigation for Fair Trial Act, 2013. In a judgment, the Supreme Court of Pakistan propounded that the opinion of an expert should be grounded on his specialized knowledge, training, expertise, and the expert must be authorized by a competent authority to analyze and evaluate evidence/facts. In this judgment, the apex court laid down very basic principles regarding the competency of an expert. Still, the details of knowledge, skills, and expertise, essential for an expert, are not exclusively narrated in this judgment. In a judgment by the Supreme Court of Azad Jammu and Kashmir, it is identified that an expert is a person who studied and learned in the special branch of science or technology and is especially skilled in the field, he provided his opinion. According to these judgments, an expert needs to get notified by the Government of Pakistan to give his opinion in judicial proceedings. A question arises here about the admissibility of an opinion of the expert working outside the jurisdiction of Pakistan and who is not notified by the government as an expert under the abovementioned provisions. And if an expert does not need to get notified by a competent authority, then what else would be the qualifying characteristics gatekeeper for the admissibility of expert testimony?
In Pakistan, two forensic agencies are performing scientific analyses of evidence material. National Forensic Science Agency (NFSA), Islamabad, is a federal department situated in Islamabad, while Punjab Forensic Science Agency (PFSA), Lahore, is a provincial department situated in one of five provinces, namely Punjab. All four provinces (states) have one Chemical examiner laboratory, which was established during British rule in India. These laboratories were involved in carrying out forensic analysis on questioned documents, narcotics, toxicological samples and histopathological samples using old techniques. PFSA is established under PFSA Act, 2007, and the analyst working in the agency is notified under section 9 of this act and section 10 allows an analyst to perform his duty defined in article 59 of QSO, 1984. The staff of NFSA and Chemical Examiner Laboratories is also notified as experts under article 59 of QSO, 1984, and their reports are admissible u/s 510 of CrPC, 1898. In addition to these facilities, Sindh Forensic DNA and Serology Laboratory, Karachi, and DNA Laboratory, Liaquat Medical University, Jamshoro, Sindh, are also government-owned functional DNA laboratories, but the analyst working in these laboratories is not notified under article 59 of QSO, 1984, by the competent authorities. Although, the reports generated by these two DNA laboratories are accepted in the courts of law across the country.,
As judges are not very well equipped with the scientific knowledge and background of methods used in the analysis, so it is not easy for them to comprehend the exact meanings of a report to find the truth during a trial. Hence, they rely upon the expert for their interpretation, and accept every word of a forensic report as the ultimate truth. Without a proper examination of a forensic report during a trial, there are serious questions on the credibility of the expert opinion. In the absence of cross-examination by the defense counsel, the judge has not only to determine the relevancy of the expert witness but also analyze the credibility by applying legal standards of admissibility. The credibility of expert evidence depends upon the robustness and reliability of the tests/technology used to draw the inference. In the strict meaning, reliability of an expert opinion means that the court can rely on the opinion during a trial perceiving it as accurate and truthful. Without ensuring the quality of analysis, the results on which an expert draws his inference may be faulty and may mislead the court in deciding the matter. In criminal cases, the consequence of such a blunder would be grave and can spoil many lives. The prevailing enacted laws of Pakistan do not present any procedure to ensure the credibility of the expert witness. In Waziristan Khan, etc., v. the State, the Lahore High Court concluded that the opinion of an expert must be based upon settled principles on the subject and relevant treatise. If it does not fit on this principle, the expert must be audited on voir dire to establish its credibility. In another judgment, it is opined that in civil matters, without cross-examination of an expert opinion, the opinion cannot reach the legal admissibility standard. While in criminal cases, the expert opinion is per see admissible and no need to examine an expert on voir dire, if the defense lawyer could not convince the court for cross-examination with reasonable arguments. In cross-examination, due to a lack of scientific understanding of the defense counsel, most of the questions are asked related to the chain of custody and inconsistencies among different documents presented by the prosecution. By and large, the scientific evidence is rejected by the court due to a compromised/broken chain of custody. Many judgments have emphasized safe recovery, custody, and transfer of evidence to forensic facility/expert. This is only the test, commonly applied for establishing the credibility of the expert opinion.,,, It is a universal practice that defense lawyers try to undermine the credibility of an expert rather than challenging the validity of the process used to analyze the physical evidence. The same is practiced in Pakistan, i.e., expert testimony is not properly cross-examined making it difficult for a judge to extract the exact technical meanings of a report. Facing such difficulty, a court uses its discretion ab initio to reject the expert report, especially when it is found contrary to other facts of the case. Instead of the judgment in the Waziristan Khan case, no guiding principle to examine the credibility of the opinion of an expert is available. In many decisions, the courts have already opined that an expert report is not admissible if it is contrary to primary evidence id est the statements of the victim(s) and/witness(es) in both civil and criminal cases.,, The admissibility of expert opinion becomes more challenging when no other oral or ocular evidence is presented before the court of law to establish the fact. In Pakistan, expert reports are presented to strengthen the prosecution's theory rather than giving any heed to the defendant's proposition. In Muhammad Ameen V. the State, the trial court convicted the accused although the DNA profile obtained from a vaginal swab of the victim did not match with his DNA profile. The trial court and appellate court had given more weightage to the victim's statement than the DNA report, and the accused had to serve a life sentence in prison. Unlike developed countries, the courts do not recognize expert reports as binding on the court, if not strengthen the prosecution's case. It is contemplated as a weak piece of evidence if not confirmatory/explanatory to primary evidence or direct evidence. One of the major reasons is that it is difficult to evaluate the reliability of scientific evidence and the judges have no legal obligation to evaluate the scientific evidence before its admissibility. The same is discussed in a judgment of the Supreme Court of Pakistan, it was stated that DNA evidence cannot be accepted as a credible piece of evidence due to a lack in the uniformity of analysis and quality control measures implemented in the forensic laboratories. In Azeem Khan and others v. Mujahid Khan and others, the Supreme Court of Pakistan exonerated the suspects who were tried for abduction and homicide of a person. Although, the remains were recovered on the indication of the perpetrators and they have confessed to abduction and murder of the victim before the police. The court propounded that as in the absence of independent eyewitnesses, the DNA report was insufficient for proving the guilt of the accused. The apex court set aside the conviction of all accused by the trial court even in the presence of the DNA report. Consequently, in courts, as per the rule of stare decisis, the expert opinion could not gain importance independently, i.e., when no other evidence is available to support it. The use of expert opinion in favor of prosecution not for the defense reduces its utility and is detrimental to justice. One of the reasons may be that no guiding principles are delineated to evaluate the credibility of expert evidence as formulated in other countries like the Daubert standard. No doubt Daubert standard, being a guiding principle, is fairly helpful for courts in the US to examine the credibility of expert evidence before considering it for deciding a case.
The Validity of an Expert Opinion
There is a strong relationship between the reliability of expert opinion and the validity of a process(s) or test(s) applied to draw that opinion. Validity is a measurement to access the accuracy of analysis and is ensured by applying standardized tests. It is deeply rooted in repeatability and reproducibility, i.e., if different results are obtained by applying the same set of procedures, then all answers are not assumed to be correct and the validity of the process is measured low. In the case of opinion based upon subjective analysis, i.e., pattern analysis, different analysts may draw different inferences making things complicated for a court to ponder. For these reasons, it is crucial to estimate the validity of the processes by calculating the error rate to minimize wrong convictions.,, In Pakistan, no set of rules/regulations is formulated at the national level to investigate the validity of an expert opinion presented in a court of law. It is difficult for a judge to scrutinize the credibility of the opinion when he is unable to inspect the validity of the processes associated with an expert opinion. In developed countries, there are set guidelines for each type of scientific analysis and the laboratories use them to validate the processes before applying them to analyze a piece of evidence. These laboratories are certified by government bodies after performing validation studies and applying proper quality control checks. Most of the laboratories are accredited by the International Organization for Standardization 17,025 or follow the national guidelines formulated by scientific working groups of the country. In Pakistan, no laboratory is fully accredited for established and recognized international standards like ISO 17025 or following any national guidelines (since no guidelines are formulated yet). Pakistan National Accreditation Council (PNAC) is a body that looks after the matters related to ISO certifications in the country. In PFSA, only three sections, i.e., firearms and tool marks, fingerprint analysis, and questioned document analysis sections, are accredited for ISO certification by PNAC. Although, other sections such as DNA Analysis, Narcotics and Controlled Substances, Forensic Toxicology, Polygraph Examination, and Digital Forensic Sections are not yet accredited. Similarly, no other forensic facility in the country is accredited/certified by any national or international body. This raises the question of the validity of processes, technology, and competency and may be a disservice to the justice system by compromising the credibility of the expert opinion. In Muhammad Sohail alias Samma V. the State is case title and complete reference of the case is 2019 PCrLJ 1656; 2019. PCrLJ is the name of the journal in which this case is reported, Lahore High Court pronounced that there should be no tampering and manipulation in evidence material during analysis and reporting. However, in the current situation, it is difficult for the court to judge whether anything went wrong with the evidence material or not, and the opinion formulated after the analysis is unbiased, errorless, and purposive. The quality of forensic analysis mainly depends upon validation of the technology, quality of equipment, training and competency of the analyst, standards being followed during analysis, and accreditation of laboratory. The accreditation of a crime laboratory is one way to convince a judge that methods and procedures applied to establish the opinion meet high standards. It is not only the advanced technology and methodology, but their proper application for drawing an opinion is crucial. Owing to these issues, courts are reluctant to solely rely upon expert opinion for conviction, when no ocular account is available. In the USA, Federal Rule of Evidence 702, Frye, and Daubert standards guide the admissibility of expert witness those dictate that the opinion should be the product of reliable principles and procedures based upon scientific validity. Moreover, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) and Kumho Tire Co. v. Carmichael, the United States Supreme Court opined that the elements of validity and reliability are essential components of expert testimony. In England, basic rules are formulated for admissibility of expert evidence, associated with knowledge, expertise, irregularity, and relevancy of scientific evidence. In Pakistan, judicial scrutiny of expert testimony can be improved with the knowledge of a judge related to relevancy, reliability, and validity. With the implementation of quality control and quality assurance measures, the expert evidence can be used in a probative way leaving very little chance of miscarriage of justice.
Conclusion and Recommendations
Articles 59 and 164 of QSO, 1984, and section 3(f) of Investigation for Fair Trial Act, 2013, dictate the admissibility of expert testimony in judicial proceedings in Pakistan. Apart from these, there is no enacted law to guide a court in determining the relevancy, reliability, and validity of expert evidence. The courts, following the doctrine of stare decisis, are accustomed to give special focus to corroboration as a rule of caution while determining the admissibility of scientific evidence and avoid conviction solely based on an expert opinion. Due to a lack of national standards to ensure the reliability and validity of scientific evidence in the country, it is difficult for a judge to comprehend the probative value of the opinion. In Pakistan, there is no jury trial, hence a judge is a gatekeeper with a duty to acquire the answers to the question of fact and the question of law during a trial. The role of a trial judge is very critical and challenging because he ought to have some basic knowledge of the scientific method and should be familiarized with the scope, magnitude, and validity of the scientific evidence. The judicial scrutiny of expert testimony is neither usually done in examination-in-chief nor cross-examination. The unskilled defense lawyers and biased or erroneous opinions of experts are big problems that may over/underweight scientific evidence. It is mandatory to discourage the practice of admitting low-quality prosecution favoring scientific evidence to avoid wrongful convictions. It is the obligation of a judge to ensure that the person, whose opinion is under consideration, must be an expert in a relevant field with specialized knowledge, skills, and experience to render his opinion. There is a dire need to increase the reliance of the justice system on expert evidence by making national standards for analysis and improving the way of scrutiny during judicial proceedings.
The Fry and Daubert rules are the guiding principles for a court to evaluate the credibility of expert evidence. To ensure the uniformity of the use of expert evidence, the courts must examine the qualification, training, and experience of each expert. It should be examined that whether the expert has passed external proficiency tests and how many errors he has committed in 1 year while processing evidence items and what kind of corrective actions are applied to those errors. The error rate of the laboratory must be scrutinized to check the quality of testing in the facility. When an expert performs analysis on evidence items of a case, the results of all analysis are maintained in form of a file in the forensic facility. It would help the court if the court orders the expert to present that file to the court for inspection. It will help the defense council and court to scrutinize the accuracy by going through each process/result. The defense counsel may consult independent experts, if needed, for the examination and better understanding of expert opinion and case file. The situation becomes worse when the opinion of two experts on the same evidence varies from each other. In such cases, the probative value of the expert evidence decreases and the court shows reluctance to rely upon any of those opinions
Many countries have developed their DNA databases, which helped to identify the perpetrators who otherwise were not identified,,,, In Pakistan, there is no consolidated legitimate DNA database that could help the judicial system in identifying the suspects based on the forensic DNA test. The facilities, performing the DNA test, have developed their repositories containing DNA profiles of all those who have submitted samples to those laboratories, i.e., it includes suspects, victims, and elimination samples. In the absence of any proper legislation, there is a big question about the legitimate usage of such repositories. The judicial reliance on expert evidence can be increased by making substantial modifications in the prevailing procedural laws and making new laws that support the admissibility of these evidences during a trial. Still, in civil cases, the expert evidence has minimal value as a piece of evidence, while oral or ocular evidence still holds a prime position. Moreover, forensic/expert evidence should be part of the curriculum of legal studies in the country. In bachelor degree (LLB), very little content is taught to the students, which is quite insufficient to comprehend the scope, nature, and utility of the expert evidence during judicial proceedings. It is observed that lawyers, both prosecution and defense lawyers, have very little or no knowledge of the philosophy of science behind expert opinion. Therefore, it is normal practice that forensic reports are admissible devoid of any questioning on the reliability and accuracy of methods applied during analysis.
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Conflicts of interest
There are no conflicts of interest.
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