The Memory On Trial: A Psychological Assessment Of Witness Testimony In The Context Of Bharatiya Sakshya Adhiniyam, 2023
Krishika, Institute of Law, Nirma University
ABSTRACT
In an age where the fallibility of memory is being increasingly acknowledged through advances in science, eyewitness testimony remains the fulcrum of criminal adjudication in the Bharatiya Sakshya Adhiniyam, 2023. Traditional criminal courts traditionally view evidence (including eyewitness testimony) based on 'objective' indicia such as: the consistency of the account, witnesses' confidence and demeanour, and corroborative evidence, on the assumption that the honest recall of events is almost an exact reproduction of events. However, cognitive psychology explicitly rejects such a view of memory as a purely reproductive process and establishes that it is reconstructive and fallible by nature. Human memory is susceptible to deformation from: stress, trauma, suggestibility, post-event information, and time; hence an eyewitness can truly and genuinely report on his recall of an event and still present a distorted version.
This article, discusses the conflict between the established evidentiary doctrine and modern scientific evidence within the Indian criminal justice system. It is argued that while the Bharatiya Sakshya Adhiniyam, 2023, does make certain procedural changes, the provision is essentially a reincarnation of the 19 th Century presumption of truthful testimonial recall and the current doctrine and practice still operates on differentiating between truthful and lying witness testimony alone, ignoring genuine sincere mistaken recollection.
A doctrinal and inter-disciplinary method is utilized to analyse statutory provisions, case law and literature of cognitive psychology, wrongful convictions, and procedural and substantive reforms in eyewitness identification in comparison to Indian law. It will further be analysed how a structurally corrupt Indian criminal justice system exacerbates the problems of testimonial distortion and contamination through protected trial delays, investigative suggestibility, hostile witnesses and a deficient forensic framework.
It is concluded that to ensure even a semblance of justice and factual accuracy in criminal adjudication, the law of evidence must become cognitive. Training courts on human memory, scientifically sound identification procedures, expert testimony by psychologists, protection of witnesses, and a robust forensic system are critical to curbing wrongful convictions resulting from unreliable eyewitness testimony. Ultimately, nothing undermines criminal adjudication more than the honest-lying witness and the honest-factually mistaken witness alike.
Keywords: Eyewitness testimony, Bharatiya Sakshya Adhiniyam, 2023, Cognitive Psychology, Criminal Justice, Memory Reconstruction, Wrongful Convictions.
