Berkeley Legal History Workshop Welcomes Mitra Sharafi, University of Wisconsin-Madison

Mitra Sharafi is a legal historian and Evjue-Bascom Professor at the University of Wisconsin Law School, with History and Legal Studies affiliation. Her research examines interactions between law, religion, science, and education in colonial India and the British empire. She is president-elect of the American Society for Legal History.

Paper Title and Abstract

Trial by Certificate: Government Scientific Experts and India’s Criminal Procedure Code s.293.

ABSTRACT

Across the common-law world, the right of confrontation is taken to be a core feature of criminal trials. Defendants are entitled to have witnesses appearing against them be cross-examined in court under oath. In India, though, the rule is different. The written reports of one group of expert witnesses—government scientific experts—are admitted as evidence without their authors having to come to court. This anomalous approach emerged in the Criminal Procedure Code of 1861 with the aim of avoiding inconvenience for the “Chemical Examiners,” military physicians who ran forensic labs. The rule made it hard to clarify vague or incomplete written findings, and gave cover to expert misconduct. It increased the risk of wrongful convictions, particularly in poison murder cases. The rule stuck even after original conditions changed, and it expanded as new groups of experts lobbied for the same privilege. This paper uses archival sources and case law to recover forgotten critiques of CrPC s.293, particularly by barrister-judges who worried about fair trials from the late nineteenth century on. The paper ends by proposing solutions that would require no legislative change, including the use of old devices (like the commission) and new ones (like video appearances).

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