Pros and Cons of Fingerprint Evidence

Fingerprint evidence, although sometimes not as high-profile as other high-tech crime-solving methods like DNA typing, is still very much used in criminal investigations and cases. While the principle that no two people can have the same fingerprints cannot be scientifically validated, fingerprint evidence is generally considered to be highly reliable and is particularly accessible to juries: You don't need a Ph.D. or a scientific lecture on genetics to understand that your own fingers contain a contour map of ridges and whorls that is completely unique.

Fingerprint evidence rests on two basic principles:

  1.  A person's "friction ridge patterns" (the swirled skin on their fingertips) don't change over their lifetimes.

  2.  No two people have the same pattern of friction ridges. Even identical twins have different fingerprints.

Police officers use fingerprints to identify defendants by comparing prints found at a crime scene with prints already in police files. Fingerprints can filed for a many reasons. For example, people may be fingerprinted when they are arrested or when they begin certain occupations. 

How Fingerprints Are Found

Friction ridges contain rows of sweat pores, and sweat mixed with other body oils and dirt produces fingerprints on smooth surfaces. Fingerprint experts use powders and chemicals to make such prints visible. The visibility of a set of prints depends on the surface from which they're lifted; however, with the help of computer enhancement techniques that can extrapolate a complete pattern from mere fragments, and laser technology that can read otherwise invisible markings, fingerprint experts increasingly can retrieve identifiable prints from most surfaces.

The age of a set of fingerprints is almost impossible to determine. Therefore, defendants often try to explain away evidence that their fingerprints were found at crime scenes by testifying that they were at the scene and left the prints at a time other than the time of a crime.

 

With the pros and cons that this type of expert evidence comes with, do you still think that it can still be considered a reliable method? Hope to get feedbacks soon ! :)

Reference : Fingerprint Evidence in Criminal Cases (http://www.nolo.com)

Conflict of Interest of an Expert Witness: Revisiting FOO FIO NA V HOSPITAL ASSUNTA & ANOR (MALAYSIA)

FACTS OF THE CASE

In this case, the plaintiff was admitted to the hospital (first defendant) as a result of her involvement in an accident. At that material time, she can move all her limbs. The second defendant, a visiting consultant examined her and informed her she had dislocated two neck bones. Traction treatment for that purpose was carried out on plaintiff for two days as per recommendation from the second defendant, but he then discontinued the treatment and claim that it was unsuccessful hence, plaintiff must undergo surgery. Plaintiff consented the surgery and underwent the first operation which causes her to be unable to move her limbs. However, the second defendant assured that it was only temporary and plaintiff then underwent the second operation in which she then can only move her hands. She remained in the hospital for 11 months and unable to use her legs. After the discharge she consulted with one Dr. Mahondas which had done a myelogram test on her at the hospital before. He informed her that a piece of wire which was placed to correct the dislocation of her vertebrae during the first operation had pressurized her spinal cord thus causing the total paralysis. This was discovered after he conducted the myelogram test. As a result of that, the second operation was necessary to remove the wire pressuring the spinal cord. The second defendant however stated in evidence that the wire was not in the spinal cord and this was shown by an X-ray he had taken. The X-ray however was never produced in court despite requests being made by the plaintiff for it to be produced in court and no satisfactory explanation was given for its non-production.

CALLING OF EXPERT WITNESSES

Issue arising was whether the treatment and the first operation conducted by the second defendant the normal practice in treating the plaintiff? For this purpose, both plaintiff and defendant had brought their expert witnesses in adducing the situation and give their opinions.

Dr Arumugam which was brought by the plaintiff gave his statements that the traction treatment done was insufficient to determine whether the plaintiff reacts to it and it should have been prolonged. The second defendant brought in Dr Myles Gibson, a neurosurgeon from the United Kingdom to give evidence as an expert witness on his behalf and to contradict Dr. Arumugam’s testimony. In his evidence, Dr Myles Gibson described that the dislocation of the vertebrae with bilaterally locked facets as the whipping movements which resulted in the jumping of the facets one over the other and the forward movement of the upper vertebra upon the lower. He was of the opinion that if this was left untreated, the plaintiff would have developed progressive weakness of all four limbs and ultimately she would have sustained paralysis of all the limbs. However, he did not address the issue of when paralysis set in which is the main issue of the case. Apart from that he did not see or examine plaintiff himself. His expert opinion was based entirely on the case notes given to him by the second defendant which had been shown to be suspected. It was not proven in court that the case notes given to him was the one produced in court. The court commented that Malaysians are not living in the jungle anymore whereby an opinion by a white man is to be accepted as expert opinion and the only opinion to be accepted.

CONFLICT OF INTEREST

The opinions of Dr Myles Gibson were not only disqualified and being claim unreliable solely on the basis mentioned above. The main basis is due to conflict of interest he had whether to give a good opinion as any other prudent medical practitioner would or base on his interest in that case.

The plaintiff in this case had succeeded in proving that the opinions of Dr. Myles shall be regarded as unreliable as there exist conflict of interest. Plaintiff notedly had adduced evidence in court establishing that Dr. Gibson at the material time when he gave evidence in court was a council member of the Medical Protection Society. This members of this society for medical practitioners vowed to protect any undoing or negligence made by its members. It was then proven in court that the second defendant was a member of that society. Hence, being a member of the Society, Dr Gibson is obliged to protect the second defendant from suit of negligence and such. As such Dr Gibson’s evidence is self-serving on the society which has interest in the decision to favour the second defendant. 

As per Lord Wilberforce in the case of Whitehouse v Jordan & Anor [1981] 1 All ER,

“While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.”

Hence, due to conflict of interest and non- independency of his statement, his testimony shall be unreliable.

Completion of A Perfect Circle: Expert Witness

Completion of A Perfect Circle: Expert Witness

1)    Legal Standing of Digital Forensic Analyst

§  Admittance of expert evidence based on the Criminal Procedure Code.

Pros: analyst does not need to provide detail credentials in court as the organization has been gazetted.

Cons: the defence counsel will request for time to understand the report and prepare for cross examination.

§  Acceptance of expert opinion under the Section 5 of the Malaysia Evidence Act 1950

Pros: the testimony and analysis on the digital evidence will be accepted by court if the analyst credibility is established.

Cons: The analyst must justify credentials through declaration of qualifications, background and experiences to assure the integrity of the findings and analysis made.

2)    In Court

Various types of presentation approach to illustrate the findings:

-       Demonstration

-       Animation

-       Slide

-       Verbal/ Written report

a.    Demonstration

Pros: will provide better understanding in court

Cons: In uncontrolled environment such as court, anything can happen.

b.    Animation

Pros: will provide visual illustration and it is suitable for complicated case

Cons: animation cost is expensive

c.     Slide

Pros: will provide some form of visual reference in court where defence counsel may find it hard to digest the information for the cross-examination session.

Cons: must have good presentation strategy to ensure the message understood.

d.    Verbal

Pros: defence counsel may not have any reference for the cross-examination session and it also provide high confidence/credits to the analyst

Cons: focus and avoid mistakes but the analyst need to memorize a lot of details and to ensure accuracy.

Opinions of Experts on Genuineness of Handwriting

Under Section 45 of the Evidence Act 1950 the opinion of a handwriting expert as to the genuineness of handwriting or signatures are expressly admissible on the grounds that this is a relevant fact. The evidence of a handwriting expert is therefore both admissible and relevant. Meanwhile, Section 47 of the Evidence Act 1950 provides for the admissibility of the evidence of a witness on the genuineness of handwriting where that witness can be said to be acquainted with the person stated to have written the disputed handwriting or signature. And Section 73 of the Evidence Act 1950 allows the court or a witness to compare a disputed signature or handwriting with the genuine writing of the alleged writer. However all three sections prescribe great caution in undertaking such an exercise. 

        In the case of State (Delhi Administration) v Pali Ram,[1] Sarkaria J. considered the various sections of the Indian Evidence Act which contains provisions similar to that of Malaysia. The judge held that the Indian Evidence Act recognizes two direct methods of proving the handwriting of a person. First, by an admission of the person who wrote it and secondly, by the evidence of some witness who saw it written. 

           These are the best methods of proof, however, there are three other modes of proof by opinion. They are, by the evidence of a handwriting expert (Section 45), by the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47) and last but not least, opinion formed by the Court on comparison made by itself. (Section 73)

           In an Indian case of Ishwari Prasad Mishra v Mohammad Isa,[2] the court held that evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence.

            Then, in the case of Public Prosecutor v Mohamed Kassim bin Yatim,[3] Hashim Yeop A. Sani J. (as he then was) said at page 66 that the evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. However, the court confessed that it is of the lowest order of evidence or of the most unsatisfactory character. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence.

           In another Malaysian case, Dalip Kaur v Pegawai Polis Daerah, Bukit Mertajam,[4] the Supreme Court observed that it was trite law that evidence by a handwriting expert should be viewed with caution. But such evidence is entitled to be given proper consideration and weight in the context of the other evidence available to the court. 

             It is not proper to attempt making any conclusion on the genuineness of a signature in a document by comparing two similar handwritings without resorting to the opinion of a handwriting expert who is specialised in this field. The requirement becomes incumbent when the handwriting is in Chinese characters in which the Judge in question has no knowledge whatever (per Syed Agil Barakbah SCJ, Chu Choon Moi v Ngan Sew Tin at page 36).[5]

          There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it (Murari Lal S/O Ram Singh v State Of Madhya Pradesh).[6] The judgment made by the court in this case was then affirmed by Anuar CJ (Malaya) in a Malaysian case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai.[7] 

         As a conclusion, in order to test the veracity of the opinion of a handwriting expert, the court must apply its own observation to be admitted or proved writings and compare them with the disputed one, not to become a handwriting expert but to verify the opinion of the expert. The court has to satisfy itself on its own observation that it is safe to accept the opinion of an expert bearing in mind it is not conclusive. On the other hand, if the court after examining the disputed signature with the genuine signature also comes to the same conclusion as that of the expert, the court shall not be acting as an expert. (Nik Mahmood Bin Nik Mat v Chew Kam Leong)[8]

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[1] AIR 1979 Supreme Court 14

[2] 1963 AIR 1728, 1963 SCR (3) 722

[3] [1977] 1 MLJ 64

[4] [1992] 1 MLJ 1

[5] (1986) 1 MLJ 34

[6] 1980 AIR 531, 1980 SCR (2) 249

[7] [1997] 3 MLJ 61

[8] [2011] MLJU 488

Admissibility of Forensic Linguistic Evidence in Malaysia

According to The Forensic Linguistic Institute, forensic linguistic is the study, analysis and measurement of language in the context of of crime, judicial procedure, or disputes in law, including the preparation and giving of written and oral evidence. Also, the institute described forensic linguistic as "the study of any text or item of spoken language which has relevance to criminal or civil dispute, or which relates to what goes on in a court of law, or to the language of the law itself." Thus, the linguist may be called upon to analyse a very wide variety of documents, for example, agreements relating to ancient territorial dispute, the quality of court interpreting, a suicide note and etc. 

RELEVENCY?

There is no specific provision with regards to forensic linguistic expert in the Evidence Act 1950. But, the general provision relating to the relevancy of expert evidence is covered under the Section 45 of the Evidence Act 1950 which states that "When the courts has to form an opinion upon a point of foreign law or of science or art, or or as to identify or genuineness of handwriting or finger impressions, the opinions upon that point of persons especially skilled in that foreign law, science or art, or in questions as to identify or genuineness of handwriting or finger impressions, are relevant facts; such person are called experts." The question that arise is where is the place for forensic linguistic expert in this provision as there is no specific category for forensic linguistic? 

Based on Field's Expert Evidence, the term "science" or "art" must be interpreted widely. Also, Article 49 Stephen's Digest of the Law of Evidence, the words "science" or "art" include all subjects on which a course of special study or experiences is necessary to the formation of an opinion, and among others the examination of handwriting. In the case of Chandrasekaran & Ors v PP, the court had held that "The expression 'science' or 'art' is elastic enough to be given a liberal interpretation." Thus, based on the authorities given, clearly forensic linguists are experts in 'science' or 'art'. Their evidence is relevant under Section 45 of the Evidence Act.


ADMISSIBILITY?

The general principle is that as long the evidence is relevant to the issue, it is admissible. As evidence of forensic linguists is relevant under Section 45 of the Evidence Act, thus it is admissible. The role of expert can often be misunderstood and particularly by the laymembers of a party's management. The lack of impartiality of expert witnesses is a major problem. In the United States, the slang term for expert witnesses is 'saxophones'; the lawyer hums the tune and the expert witness plays it like a musical instrument. The problem is that the adversarial system discouraged a cooperative approach between opposing experts. It does not encourage parties to agree upon a single expert who would act on the instructions of all parties and be cross-examined by all parties. Instead, each parties engages its own expert.

CHALLENGES

To date, there are no guidelines or standard for Malaysian courts in determining the reliability of forensic linguistic evidence. Thus, Malaysian courts need a standard to admit the forensic linguistic expert evidence because the court does not have a proper guidelines to assess the reliability of expert evidence in Malaysia. Guidelines can help the court to assess and scrutiny the evidence presented by the forensic linguistic expert. 




  

Expert witness under civil and islamic law in Malaysia-part 2

For the second part, we will continue the discussion on the comparison between the expert witness under civil and islamic law in Malaysia. This part will focus more on the definition of terms used and also what are the things that are present and also absent in both statutory provisions on expert witness in the Malaysian law.

The first term to be emphasize on is “relevant facts” which can be found in the provision on expert witness in the Evidence  act 1950[1], the first limb of section 45.The meaning of “relevant “ is explained in Section 3 of Evidence Act 1950[2], which reads:

Interpretation

 3. In this Act, unless the context otherwise requires—

“relevant”: one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

For the judicial interpretation on meaning of relevant facts, it was discussed by Thesiger J in the case of R v Hartz[3]:

 “’relevant’ is used in the sense that evidence in which it is defined in Art 1 of Stephen’s Digest Law of Evidence. It is thereby stated the word means “ any two facts to which it is applied are so related to each other that according to the common course of events either taken in by itself or in connection with other facts proves or renders probable the past…existence of the other.”

In a nutshell, it can be said that relevancy is of a probative value that is sufficiently useful to prove something important in trial

Another illustration for the definition of relevancy can be taken fro the case of Thavanathan v PP[4]. the main issue in this case was whether it was open for a second appellate court to consider evidence adduced on a charge of which the accused person had been acquitted to support his conviction on a second remaining charge. Chong Siew Fai FJ stated in his judgment that it its allowed, as long as it satisfied the law relating to relevancy which in present context of the law are principally section 5,6,7,8,9 of Evidence Act 1950. It can therefore be adduced that the scope of “relevant” is restricted to provisions relating to relevancy under Evidence Act 1950.

Moving on to the definition of “qarinah”. It is the utmost importance that these two terms to be differentiated since the only thing that is different between the two provisions, apart from the additional usage of the word “nasab” in the islamic evidence statute is the usage of “qarinah” and “relevant facts” that substitute each other in the different acts.

        

         Qarinah means evidence that can be drawn from the temporal and spatial and any other circumstances, in simple words, circumstantial evidence. is a tool of proof that applicable in Law of Evidence in order to establish a claim and convict a crime. Qarinah was attested by the 'ulama as a great proving method whenever it fulfills and appropriate with the conditions that rules by the syarak. The other difference is that the islamic law provision on expert witness consist of a third subsection which requires two or more experts must be called to give testimony if possible but if there are no two experts, one expert testimony is adequate. If two experts give different opinions, then a third expert must be called to testify. This provision is absent in the Evidence act 1950.

So, with the civil law using the term relevant facts and islamic law, on the other hand uses the word “qarinah” which means circumstantial evidence. Is relevant facts and circumstantial evidence can be used to reflect one another in this case? Lets hear some comments.

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[1] Act 56

[2] ibid

[3] unreported

[4] [1997] 2 MLJ 401

Expert witness under civil and islamic law in Malaysia-part 1

Malaysia is one of kind country which has laws of different types infused in one operational system. Being a previous colony of the British Empire, this country inherited most of the civil legal system from the British, this also includes some of the statutes which are pari materia with either statutes from the United Kingdom or its previous colonies, India, for example. Being a country with malay majority, islam is the official religion of the land as stated in the Federal Constitution:

Religion of the Federation

3. (1) islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.

This results in a two different court system which makes the Islamic law applicable to certain aspects or issues of the law. Some of the Islamic law also were made into statutes; a case in point is the Akta Keterangan Mahkamah Syariah (Wilayah-Wilayah Persekutuan) 1997[1]. The civil version of this statute in Malaysia is the all famous Evidence Act 1950[2]. For the purpose of this discussion, we shall further discuss and compare the topic on “expert witness” which can be found in the provision of both statutes that were mention earlier.

In the Evidence act, the provisions that touch on the issue of expert witness are section 45. The sections read as follows:

Opinions of experts

45. (1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

The provision is quite straightforward in explaining how an expert witness’ opinion can be relevant facts. In the Syariah Courts Evidence (Federal territories) act 1997, the provision on expert witness can be found in section 33 which reads:

Opinions of experts

45. (1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions or concerning the determination of nasab, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions or concerning the determination of nasab, are qarinah.

(2) Such persons are called experts.

(3) Two or more experts must be called to give testimony if possible but if there are no two experts, one expert testimony is adequate. If two experts give different opinions, then a third expert must be called to testify.

This is it for the first part, one the second part later on, more elaboration will be made on what is qarinah and how does it compare to relevant facts. How expert witnesses differ under the Evidence act and the other act will also be discussed.

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[1] Akta 561

[2] Act 56