Narcoanalysis, because of the administration of Sodium Pentathol, a drug which is administered to an accused or suspect or a witness to speak ‘truth’, is sometimes referred to as Truth Serum. In India three such truth tests i.e. narcoanalysis, polygraph examination and the brain electrical activation profile (BEAP) (collectively “the tests”) are conducted either in the scientific laboratories or operation theatres of hospitals by the investigators to get to the ‘truth’. Hence a liberty to call these tests collectively as ‘truth serums’, though it would be a misnomer, is sought from the readers. And this story aims to explore the probative worth of these much-hyped scientific techniques and examine the ‘truth’ about these techniques from a forensic and legal perspective.
Of Late in India whenever there is a high profile criminal case, like the latest one like the Jagan Mohan Reddy case or much debated Aarushi Talwar murder case and stamp paper scam case of Abdul Karim Telgi, the media, be it electronic or print, abounds in stories that the tests of the accused are either being carried out or the same will be done to reach the truth. Such reports make the layman believe that now the ‘truth’ will emerge. However, there are serious doubts about the scientific validity and reliability of these tests and also there are legal objections to the manner in which these are administered.
The full bench of the Supreme Court of India in Smt. Selvi v. state of Karnataka had the occasion to visit the aspects of admissibility and probative value of the evidence collected through forensic methods, especially polygraph test, BEAP and narcoanalysis tests on the touchstone of fair trial and same being largely dependent on right against selfincrimination. And the court in its judgment clearly made involuntary administration of any of these tests as amounting to testimonial compulsion andthus being barred under article 20 (3) of the constitution. This story therefore, explores the rationale behind this judgment and considers Justice Malimath committee reports to arrive at the ‘truth’ behind rights of the accused/suspect, the investigators’ challenge & dilemma and the quest for justice for the victim.
It involves intravenous administration of a drug, usually sodium pentothal to induce hypnotic trance upon a subject making him more susceptible to divulge information to the investigators. While discussing the probative limitations of this technique, the Supreme Court, in Para 47 of the judgment in Smt. Selvi (Supra), observes that “the ‘narcoanalysis’ technique does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the druginduced revelations are not related to therelevant facts and they are more likely to be in the nature of inconsequential information about the subjects’ personal lives. It takes great skill on part of the interrogators to extract and identify information, which could eventually prove to be useful. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators, who are under pressure to deliver results, could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the ‘hypnotic stage’. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the ‘narcoanalysis’ technique.”
Further, the court observed that “the weight of precedents indicates that both the statements made during narcoanalysis interviews as well as expert testimony relating to the same have not been given weightage in criminal trials.”
The admissibility of Narco Analysis test has always been an issue as the consistent results are not to come by. Even in USA, in majority of the states, the tests are not admissible. The verdict of the Supreme Court, as told to me by you, is very balanced especially when it makes involuntary administration of the tests impermissible. But the problem with this is that that willingness/consent may also be extracted from a person by coercive methods and same may be manipulated and presented to the court in the manner court may admit it in evidence.
These days the task of the investigators especially under media glare has undoubtedly become tough. But then this is reality of our existence and we must accept it. The investigative methods of CBI are unique in the sense that they do not resort to third degree methods and rely mostly on asking the same questions again and again over a period of time to a person. This tends to bring forth any inconsistency or discrepancy in his various versions which may ultimately make him either to break down or leave some clues for the investigators.
The theory for this test is simple. If you lie while responding to a question, it shall be accompanied by physiological responses, which are different from those that arise normally. For this test, cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are attached to the body of the subject for measuring and recording the physiological responses to the questions asked.
The results are then analysed by the experts to verify the veracity of the statements made by them. The instruments measure changes in terms of respiration, blood pressure, blood flow, pulse and galvanic skin resistance.
The probative limitation of this test arises from the fact that it is based on questionable premise because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses thereby rendering these tests unreliable.
Which chemicals/substances are administered to a subject of such tests?
This test was first thought by Dr Robert house an obstetrician in Dallas, Texas USA and subsequently documented by Dr. William Bleckwinn in 1930.It still has selected uses. In therapeutic context, there is controlled administration of intravenous hypnotic medications. This process is called "narcosynthesis" or "narcoanalysis."
The drugs used are sedative or hypnotics that alter higher cognitive functions. These drugs are ethanol, scopolamine, 3-quinuclidinyl benzilate, potent short or intermediate acting hypnotic benzodiazepine such as midazolam, flunitrazepam, temazepam and various short and ultra-short acting barbiturates including sodium thiopental (commonly known as sodium pentothal) and amobarbital (sodium amytal).The commonly used drugs are Thiopentone sodium(Commonly used), Secobarbitone or amytal sodium.
What exactly these substances do to a subject (kindly explain the biological processes involved in producing such state of mind)?
These drugs produce a hynotic state in which person communicate without being conscious and having awareness. At the same time person may have Delusions or Illusions or Hallucinations and loss of orientation to space and time, thus person may not be in touch of reality. The narration or recalling of experiences may get influenced by these factors, which may be far from truth or a distorted version or a version influenced by the interrogating technique's of the interrogator. The loss of the power of reasoning and judgment in this state further complicate the situation. And legally person is not in fit state of mind to give valid information or valid statement. If this state of mind is considered to be a state where person can give valid information then perhaps the medical certificate from Medical officer for "sound mind" before making a statement should be dispensed with. The released feeling and emotions may get mixed up with recalling events or memory, thus not making it a reliable test to provide correct information.
More-over this test was aimed to be carried out by a Psychiatrist for the psychiatric patients.
Can anybody fool even these tests like some who can fool polygraph test?
Polygraph is not a reliable test at all nor it is admissible in court of law. Nor this test satisfied any of the criteria laid by the courts of law. Nor it is recommended by the Medical Associations or communities. Its value is not more then Palm reading or Card reading by Parrot. Thus whether it can be fooled or not is immaterial.
Does the administration of such chemicals/substances have any harmful side effects?
It is not harmful if done by and under strict medical supervision. In exceptional cases sudden cardiac arrest on administration of these drugs is reported in literature, hence this test if at all to be conducted should be conducted in medical setting by medical man preferably anaesthetic and psychiatrist.
How consistent/reliable are the results of such tests. Is the scientific community in agreement on the results of such tests in terms of reliability and consistence?
Niether Lie detector nor Narcoanalysis are reliable tests as mentioned above, I am happy that supreme court has given a verdict and it has been controlled. There is no approval from Medical Associations. Rather, it amount to a confession. Ethically no Mdeical officer can be a party to a confession, thus involvement in such a procedure by a Doctor is Unethical.
In this test, brain activity is measured in response to a stimulus known as ‘eventrelated potentials’ (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERPmeasurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitivebrain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed.
The testimony includes verbal and certain non-verbal forms of conduct, such as the production of documents and the making of intelligible gestures. However, this position was distinguished from giving of physical evidence like breath analyser test, or giving samples of blood, urine, semen, swab, sputum etc., which is permissible under section 53 and 54 of CrPC under permissible medical examination.
The Supreme Court in Smt. Selvi case explained the rationale behind this protection and said that it is to disincentivise the use of interrogation tactics by the investigators that violate the dignity and bodily integrity of the person being examined. Otherwise, the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such ‘short-cuts’ will compromise the diligence required for conducting meaningful investigations. The idea is to dissuade the investigating agency from resorting to coercive methods otherwise in the words of Sir James Fitzjames Stephen would be an incentive for those in charge of enforcement of law ‘to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes rather than to go about in the sun hunting up evidence.’ Furthermore, this right protects against inducement to the accused/suspect by the police to confess.
In Para 165 of the judgment, the answer was given in the affirmative to the question, whether the involuntary administration of the tests violate the right against self incrimination?, that “our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) comewithin the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).”
Prior to that the court in Para 160 observed as to how undergoing a polygraph examination or a BEAP test amounts to testimonial compulsion. The court said that “even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators.”
Exploring this aspect of the tests, the court first expressed its view on the question whether the tests are a part of ‘medical examination’ under CrPC and held in Para 152 that the tests should not be read into the provisions for ‘medical examination’ under the Code of Criminal Procedure, 1973. Later on expressed its views on the question as to why voluntary administration of these tests has been permitted? In addition, the court also held that “it must be borne in mind that eventhough the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3). In the past, the meaning and scope of the term ‘investigation’ has been held to include measures that had not been enumerated in statutory provisions. And further in Para 154, the court permitted consensual administration of the tests on the direction of the criminal courts saying that “…despite the absence of a statutory basis, it is tenable to hold that criminal courts should be allowed to direct the impugned tests with the subject’s consent, keeping in mind that there is no statutory prohibition against them either.”
The invocation of the argument of ‘compelling public interest’, especially in the face of terrorism, insurgency and organised crime to permit involuntary administration of the tests, the court was of the firm view that the status of right to life and right against self-incrimination, i.e. Article 21 and 21 of the Constitution, and have a non-derogable status the same, cannot be suspended even during ‘emergency’. It is the job of the legislature to balance the issues of public safety and personal liberty.
Having explored the issues related to the probative worth and admissibility of the results of these tests, the investigator’s challenge and dilemma needs to be examined. In high profile cases, there is tremendous political and media pressure on the investigators to ‘resolve’ the case swiftly. This attitude of the public and the ruling elite only demoralises an already overworked and much criticised police force, which has to look after not only the law and order situation but also to act as an investigative agency. The answer does not lie in doubtful techniques like the ones considered in this story but as mentioned in the report of Justice Malimath Committee on Reforms of Criminal Justice System, is in being better staffed and well provided superlatively trained police force. Moreover, a little respect from the general populace will help the police to become a better investigative agency.
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