Post Arrest Silence and Self-Incrimination

An interesting question has been troubling me of late, to discuss which, I'd ask you to recall the posts on entrapment. For those in a hurry, picture this: The police have sent V to the doorstep of D, a drug dealer, asking for some contraband. V has been taped, and the conversation is being recorded by the Police who are sitting in a van 50 yards away. D willingly complies, and the moment he accepts the cash from V a Police Officer rushes out of his van and confronts D, accusing him of having sold contraband drugs to V and grabs his wrists. D appears confused and remains silent, not responding to the accusation. He is subsequently on trial for possession and sale of narcotics. Can the Prosecution rely on D's conduct when he was confronted by the police officer? 

Evidence of Conduct?

Section 8 of the Indian Evidence Act 1872 [IEA] makes relevant "... the conduct of any person an offence against whom is the subject of any proceeding ... if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto [emphasis supplied]".

The 'conduct' here is D appearing confused and remaining silent when the Police accuse him after the trap. Does it influence or is influenced by any fact in issue or relevant fact? Yes, as per the definition of the terms 'fact in issue' and 'relevant fact' under Section 3 of the IEA. So there is little doubt that the conduct in question is made relevant by Section 8, IEA.

Is this Reliable Evidence?

Courts differ in their appreciation evidence which details the conduct of an accused following a confrontation such as the one in our example. On one occasion, the Supreme Court in Prakash Chand v. State [AIR 1979 SC 400] held that the "immediate reaction of the accused on being questioned by PW9 [police officer laying trap] is a circumstance which corroborates the testimony of PW6 [complainant, the bribe-giver]." However, earlier in Sat Paul v. Delhi Administration [(1976) 1 SCC 727], the Court held when discussing the reliability of such conduct, that "its probative value would be almost nil" because "It would not be unusual even for an honest Officer to be frightened out of wits on being suddenly accused of bribe-taking by a superior Officer". On the balance of judgments, however, it appears that the Supreme Court is usually willing to consider the evidence of conduct following a confrontation/questioning at the scene of crime [see, Zwinglee v. State of M.P., AIR 1954 SC 15; Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322; State of Madras v. Vaidyanatha Iyer, AIR 1958 SC 61].

Self-incriminatory?

Article 20(3) of the Indian Constitution guarantees a fundamental right that no accused person shall be compelled to be a witness against himself. Would this not squarely apply to any questions D is asked when the Police grab him? At the relevant time, D is literally in police custody for committing an offence, clearly making him an accused [see, Romesh Chandra Mehta v. State of W.B., AIR 1970 SC 940]. D is questioned by the police, i.e. to become a witness against himself. Two out of three boxes are checked.

We are only left with the issue of compulsion. The majority opinion in State of Bombay v. Kathi Kalu Oghad, [AIR 1961 SC 1808] did hold that "The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'." The words 'mere' and 'voluntary' are instructive. They do not envisage the coercive scenario that is custody at the time of a trap. In fact, Krishna Iyer J. in Nandini Satpathy v. P.L. Dani [AIR 1978 SC 1025] took great pains to discuss how harrowing police interrogation can be for an accused. Therefore, it is difficult to conclude that the observations in Kathi Kalu Oghad make such evidence permissible. 

The Supreme Court of the United States in Doyle v. Ohio [426 U.S. 610 (1976)], held that the post-arrest silence of an arrestee could not impeach or impair any subsequent explanation, as that silence was protected under the Fifth Amendment to the U.S. Constitution. The Court concluded thus largely because Doyle had chosen to remain silent after being read his Miranda Rights, a set of judicially mandated warnings issued to every arrestee following the landmark decision in Miranda v. State of Arizona [384 U.S. 436 (1966)]. Therefore, it is difficult to rely on it to support the general proposition that post-arrest conduct upon questioning would contravene the privilege against self-incrimination.

Conclusion

Today, whatever D says and/or does upon being confronted at the time of being apprehended by the police is relevant and admissible. D, therefore, is being made a witness against himself under what seem to be compelling circumstances. 

Guest Post: The Relevance of Bad Character in Indian Law

I am pleased to present a Guest Post by Mr. Kaustav Saha, a very bright IVth Year student in the BA LLB (Hons.) programme at NLS, Bangalore. He may be contacted at kaustavsaha93@gmail.com.

Introduction

At the heart of the prohibition on evidence of bad character is a fundamental principle of criminal justice: the accused is only on trial for the offence he has been charged with, and will not have to answer for his past sins which have no bearing upon the charge. This rule is embodied in Section 54 of the Indian Evidence Act 1872 [IEA]. The quixotic nature of this rule is apparent: bad character is sometimes quite relevant to determine the guilt or innocence of an accused person. Should this statutory rule be eschewed in the face of compelling practical realities of a trial? 

In the Indian context, this dilemma is significantly embodied in the conflict between Section 54 on one hand and Sections 14 and 15 on the other. Section 14 IEA indicates that facts are relevant if they show the state of mind of a person or of bodily feeling [Section 14]. The crucial question which arises in the context of Section 14 is when state of mind is considered relevant. Courts have held that Section 14 operates only when existence of state of mind is in issue and not where guilt or innocence depends on actual facts [See, R v Vyapoory, ILR (6) Cal 655; Jagmohan @ Birju v State, ILR 1995 Del 165). This amounts to little more than saying that it operates whenever the state of mind is an ingredient of the offence, which is true for most criminal offences. Section 15 makes it a relevant fact that an act was part of a series of similar acts, where it is a question whether that act was accidental in nature. 

Section 54 v. Sections 14 & 15: An Intelligible Hierarchy?

This brings us to the heart of the debate: does Section 54 override all other provisions of the IEA [Sections 6-55] which make evidence relevant and hence admissible? This issue was squarely considered by the Bombay High Court in Lakshmandas Chaganlal Bhatia v State [AIR 1968 Bom 400]. The accused were charged with conspiracy to unlawfully import gold into India, and the Prosecution had relied upon evidence of the accused having assisted in committing such illicit acts prior to the alleged conspiracy being hatched. This was contended as being hit by the prohibition under Section 54, regardless of it being relevant under other provisions of the IEA. The Court disagreed, and held that Section 54 did not override other provisions, thereby accepting the evidence as relevant and admissible inter alia under Section 15.

I find the reasoning adopted by the Court problematic for two separate reasons. Firstly, it is highly questionable that the evidence in question satisfied the test of similarity as laid down in the common law [The most recent elucidation of which came in DPP v P (1991) 2 AC 447, that the prejudicial effect of such evidence must not outweigh the probative value]. It is submitted that allowing prior instances of smuggling to be relevant and admissible under the similar fact rule entirely frustrates the purpose behind the bad character prohibition. Such a reading of the similar fact rule allows highly prejudicial evidence to be admitted for proving facts which could have been otherwise proved by other, more reliable, evidence. Secondly, placing Section 54 beneath other provisions in a hierarchy is legally dubious, particularly when the common law indicates the desirability of the contrary position. Professor Williams lamented that case law from the early 19th Century till the 1920s revealed a tendency to widen the area of admissibility of similar fact evidence and deprive the accused of a fundamental protection which may lead to his acquittal [See, E. Williams, 'Evidence of Other Offences', 39 Law Quarterly Review 212, 223 (1923)]. 

Lakshmandas reveals a similar unfortunate tendency in Indian law. The court’s observation that evidence of prior smuggling would be inadmissible if offered for the inference that the accused were criminally predisposed is of little consolation. The use of the word 'accidental' in Section 15 has almost unanimously been considered as the opposite of 'intentional', and this has made evidence of similar fact in India admissible whenever mens rea is an element. To overcome this problem, it must be realised that the manner in which Lord Herschell used the word 'accidental' in the celebrated case of Makin v Attorney General for New South Wales [(1894) AC 57] and also how Sir Stephen used it in the Evidence Act, is a state of mind opposed to "coincidence or mere chance" [See P.B. Carter, 'Forbidden Reasoning Permissible: Similar Fact Evidence a Decade After Boardman', 48 Modern Law Review 29, 40 (1985)].

Conclusion

While the character evidence prohibition is treated as a laudatory exclusionary rule, a closer look reveals that this has largely been lip service. In the face of a conflict between including relevant evidence and preventing prejudice to the accused, the former has usually prevailed, and it may very well continue to do so. Indian law at present lacks a principled approach to the admissibility of such evidence and as a result, the Evidence Act has been interpreted to give a wide berth to the admission of similar fact evidence. This largely unfettered inclusionary rule threatens to engulf the prohibition on introducing evidence of an accused’s bad character. Rather than ask when state of mind is relevant, a largely unhelpful test, the question should be whether the accused asserts coincidence or chance as a defence. By altering the nature of enquiry thus, there is a better chance that the prohibition on character evidence will be treated as the rule and admission of similar fact evidence as the exception.