The Application of Modern Methodologies in Interrogations and Confessions [Part IV: Recommendations]

[Abhirup Das has a keen interest as well as specializes in Criminal Law. He is currently an Assistant Professor at National Law University, Jodhpur.]

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Note: This work has been divided into multiple parts. This series of work elucidates various interrogation techniques and manuals that can be sources of knowledge for the development of interrogation manuals for Indian law enforcement organizations. Hereunder, we present the final part of this work that shall discuss admissibility and appreciation of statements made in the police custody and provide certain recommendation on the law. In Part I, the author had provided a brief history of interrogations and confessions, whilst Part II dealt with the legal position regarding interrogations and confessions in India and abroad. Part III dealt with various techniques of interrogations employed by the authorities. Previous parts of this work can be accessed here: Part I   Part II  Part III

ADMISSIBILITY AND APPRECIATION OF STATEMENTS IN POLICE CUSTODY

In the absence of adequate empirical research, it has not been possible to determine how the different stakeholders, namely the police (or law enforcement agency), prosecution and the trial judge perceive interrogation. Human rights activists almost unanimously accuse the law enforcement agencies of having committed acts of violence during interrogation so far as India is concerned. The only indicator of justice is the higher judiciary’s proactive role in curtailing police powers of interrogation through various cases and the liberal legislations of criminal procedure and law of evidence. It is suggested that empirical research be undertaken in order to understand the perspectives of the police, prosecution and the trial judges in the interrogation of accused in police custody.

The Central Bureau of Investigation Manual, 2005 requires that Investigation Officers ensure that confessional statements are made only before the Magistrates under section 164 of the Code of Criminal Procedure, it also mentions about acting upon statements made in custody under section 27 of the Indian Evidence Act. The Prevention of Corruption Act, 1988 in section 20 shifts the burden of proof on the defence in certain cases of public servants engaging in corrupt practices. However, that does not make confessional statements made before the CBI to be admissible. The National Investigation Agency Act, 2008 does not mandate any rule of evidence regarding the admissibility of confessional statement, unlike the now-repealed Terrorist and Disruptive Activities (Prevention) Act which had made confessional statements admissible in section 15.

Although the Courts do not recognize any confession made before police officers to be admissible, it should no longer be the case. One may observe that the situation in the USA and England are such that a total waiver of the right to silence can be made. The situation in India was formerly such that the torture in custody was the norm and not the exception. Now that even the police administration has begun to take human rights seriously, it is imperative that some form of partial or total admissibility of confession made before the police officers are rendered admissible. The consent which is voluntarily given by the accused to undergo scientific tests ought to be made completely admissible instead of restrictive admissibility under section 27 of the Indian Evidence Act.

RECOMMENDATIONS

It is suggested that the status quo be maintained at the present moment until an expert committee of the Bureau of Police Research & Development gives a more feasible response for reformation. Any attempt to reform must be introduced in stages, gradually. The coordination mechanism between the directorates[1] of prosecution, the police and the district administration must be improved in order to monitor the performance of the criminal justice administration in the concerned jurisdictions. Systems such as the Crime and Criminal Tracking Network Systems should be integrated with the biometric databases[2] created by the Unique Identity Authority of India in order to know prior history of an accused.[3] While the US has better capacities for forensic psychological analysis as well as other forensic techniques to aid in the interviews and interrogations, a system of equal capacity cannot be actualized in India due to the high of the population to police ratio. Using such techniques in each and every case may also not be economically viable. The expertise required for forensic analysis is diluted by the posting of police personnel to law and order, traffic policing, administrative or security duties after they are trained in interviews, interrogations and other forensic psychology practices. It is pertinent to ensure that there is a balance of political insularity and functional independence of the police with appropriate accountability to democratic institutions. The Union and the State Governments ought to engage in better cooperation for prosecution, police investigations, law and order problems and intelligence sharing mechanisms. The techniques of interrogations and interviews ought to be examined and tested out before being adopted and enumerated in Police Manuals. Sensitive techniques may be classified as secret for restricting their access. Prosecutors ought to be briefed and trained so that they may explain these techniques appropriately during the trials. The police, prosecution and the Judges ought to all be updated with the latest techniques so that cases are not dismissed on mere technicalities despite facts existing to justify convictions. The police must be sensitized to enhance the quality of interrogations and interviews. There should be a clear policy for demarcation of investigating cases under the Indian Penal Code or Special Laws. Anything to the contrary may reduce the applications of laws to arbitrariness.

Three stages may be recommended for the development of best practices and improve the police capabilities for interview and interrogation of the accused, informants and witnesses:

  • Firstly, there should be in-depth multi-agency and multidisciplinary research into the processes and techniques of interrogation. Techniques such as audio-visual recording and analysis of interrogations for detection of deception using micro-expressions, kinesics (study of human movement and gestures), haptics (study of gestures), proxemics (study of orientation in space), vocalics (study of voice) and chronemics (study of timing in non verbal communication) may be utilized. The works of inter alia Paul Ekman[4], David Matsumoto, Hyisung C. Hwang, Lisa G. Skinner & Mark G. Frank[5] must be studied and replicated for future study and reference.
  • Secondly, the experience of successful interrogators should be utilized to the best possible extent and if necessary be reduced into writing for analysis and research for upcoming generations of officers so that the unique conditions and diversity of India is reflected in the collective history of the police services. The best practices should be reflected in the form of interrogation manuals for the police forces and specialized agencies.
  • Finally, the advanced and upcoming technologies of Profile of Nonverbal Sensitivity (PONS), Diagnostic Analysis of Nonverbal Accuracy (DANVA), Interpersonal Perception Test, and MiX/METT (microexpression test) should be utilized in addition to existing technologies and options for successful collaboration with foreign police services should be considered as policy.

The relevant procedures should be incorporated in training/refresher courses for police servicemen/servicewomen in accordance with the policy and the law.

CONCLUSION

There is indeed, no doubt that the world has entered into a new age of development. If measures to reform the criminal justice administration are not put in place, India shall be subjected to immense dishonour in the international arena with regard to her human rights record. This cannot be allowed to continue since it is in the interest of the nation to develop itself. Alienation is not an option in the era of globalization. The Central and State Governments should take appropriate legislative measures to create the aforementioned Institutions & Organizations by amending the Police Act, 1861; the Code of Criminal Procedure, 1973 and by promulgating new legislation to streamline interrogation procedures and also to increase R&D into police investigation reformation. There should also be a legislation creating bodies for oversight and implementation of the said legislation. The law enforcement officers put their lives on the line to protect the people of this nation. This idea ought to be inculcated in the people of this nation, so that they may trust the personnel instead of fearing them. The deterrence caused by fear of custodial violence is neutralized by the abysmally low rate of convictions in this country. A democracy is a rule of laws and not of men. Therefore, the rule of law must prevail, so that, to paraphrase Abraham Lincoln, “Government of the people, by the people and for the people may not perish from this earth”. Political insularity is absolutely necessary, functional independence of the police with oversight by democratic institutions and the judiciary must coexist. The redrafting of interrogation manuals and ensuring administrative coordination in the matters pertaining to police postings on the basis of expertise in interrogations is also necessary. The Central and State Governments must cooperate in all matters pertaining to the maintaining of the rule of law by ensuring coordination in investigations, interrogations, and intelligence collection. The recommendations and the studies made from time to time by the Bureau of Police Research and Development and the National Police Commission must also be given due priority by the legislators in order to maintain the balance of liberty and order in society.

[1] Functioning under the various States’ Home Departments as well as those of Central agencies.

[2] These suggestions are subject to the final disposal of the Justice K S Puttaswamy (Retd.) v. Union of India case pertaining to the constitutional validity of the UIDAI’s biometric programme.

[3] This would help immensely in interrogations since the building of rapport and confronting with evidence will become relatively easier.

[4] Paul Ekman, Telling Lies-  Clues to Deceit in the Marketplace, Politics, and Marriage (W.W. Norton & Company,

[5] David Matsumoto, Hyisung C. Hwang, Lisa G. Skinner & Mark G. Frank, “Evaluating Truthfulness and Detecting Deception”, FBI https://leb.fbi.gov/2011/june/evaluating-truthfulness-and-detecting-deception

See, Noel Otu, “Decoding Nonverbal Communication In Law Enforcement”Salus Journal  http://www.salusjournal.com/wp-content/uploads/sites/29/2015/06/Otu_Salus_Journal_Issue_3_Number_2_2015_pp_1-16.pdf

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