Effects of Lack of Fair-Disclosure

Manav Kothary

In this article we are going to focus on what shall be the effects if the prosecution takes any undue-advantage during the hearing of the trail and bind the court with the stick of rules.

The adversarial and inquisitorial systems of justice are two distinct ways to administer courts.

  1. In an Inquisitorial court:

The judge is responsible for conducting a non-partisan prosecution within the system established by a detailed, codified collection of laws to introduce the proposed indictment, and it is he who rules on the validity, choice, and order of potential witnesses, as well as permits of all sides to interview the witnesses. On the balance of probability, he will determine if the party that initiated the litigation has shown their version of events to the requisite level of evidence.

  1. In adversary hearings:

A neutral judge serves as interviewer and referee on legal issues, occasionally taking part in interrogation. The court does not conduct its investigation; it simply considers whether or not the evidence is proved beyond a reasonable doubt. The role of public prosecutors is assisting the judge, as a minister of justice, in conducting the trial equally, unbiasedly, and in guaranteeing that all human rights are respected, not pre-judging the accused.

These cases mocked the existing foresighted planned legal system.

Mr. Vishnu Tiwari was imprisoned on the allegations of rape and provisions of the SC-ST act, was recently found innocent by the Allahabad High court after he has spent 20 years in Jail. The matter remained a defective matter for 16 years. This was not the sole misfortune of its kind.

In America:

Michael Morton was convicted for murdering his wife. After spending 25 years in prison, it was held that he was wrongly convicted. The prosecution had obtained the conviction by concealing DNA report and two prime testimonies:

  • First of three-year-old son and
  • Second of the neighbours.

He was immediately exonerated with an ineffable injury.

The groundbreaking case of Brady v. Maryland the United States Supreme Court, defined the curvature of the fair disclosure. The Court ruled that non-disclosure of evidence is to be interpreted as a breach of the accused’s right to due process.

The three conditions mentioned below were also established as checkboxes to qualify information as important if it was demonstrated that the information was significant:

  1. Was not disclosed by the prosecution; 
  2. Is favorable to the accused; and 
  3. Is material either to guilt or punishment? 

Although we have idealistic and over-ruled judgments like:

“The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but the accused as well. If an accused is entitled to any legitimate benefit during the trial the Public Prosecutor should not scuttle/conceal it. On the contrary, the Public Prosecutor must winch it to the force and make it available to the accused.”

I) The investigating authority withheld it and did not file it with the police report.

ii) Such material is of ‘sterling quality’.

It paved the way for the defendants to produce before the court, material evident for upholding their client’s interest and which the prosecution may or may not choose to rely on.

Yet we lack any binding rule. On the contrary, we have:

  • Section 173(5) Cr. P.C states that the police officer shall place before the magistrate all the relevant documents and testimonies, which the prosecution proposes to rely on or examine. This provision can be draconian because it negates the rule of fair disclosure. The language used in the provision does not oblige the prosecutor to produce any document or statement that is exculpatory.
  • A full judge bench judgment of State of Orissa vs. Debendra Nath Padhi:

“Even if evidence has the power to exonerate an accused from the charge/s, still the accused cannot invoke section 91 of the Cr.P.C. to produce before the court any evidence other than that on which the prosecutor depends.”

As a result, the prosecution is unwittingly given the indisputable right to produce chosen testimony, witnesses, and records.

To add fuel to fire:

On October 13th, 2017, the Madhya Pradesh government released a smartphone application called ‘M.P. Prosecution‘. The app refers to it as a ‘Public Prosecutor Performance Evaluation System.’ Prosecutors are required to apply their regular work (court-related or administrative) via this application so that the prosecutor’s success ranking can be calculated in a straightforward, rule-based, and empirical manner.

  • 1000 points for obtaining capital punishment,
  • 500 points for life incarceration, and
  • 200 points for every such milder punishment.

The top scorer is recognized by the government and the prosecutors securing 2000 points or above identified with titles such as ‘Pride of Prosecution’, ‘Best Prosecutor’ etc. In 2018, the rate of capital punishment awarded by the lower court rose dramatically to 367%.

Thus, it is a well-established legal stance that the conventional right to nulle prosequi is open to lawyers, and their sole goal is to serve as an officer of the Court and assist in seeking justice, rather than to obtain prosecution at all costs. Any advantage gained by the prosecution over the accused by the concealment of evidence in his favor will play a significant part in his indictment.

History has witnessed cases leading to gross injustice just because of misuse of this kind of provision. There is no governing mechanism in place in the Indian judicial system to fill this hamartia.

The judge in all cases is the final adjudicator let him decide from the buffet of evidence which has cropped up from the findings of the police.

The criminal justice system places the right to a fair trial on the highest pedestal.  The rudimentary philosophy of our adversary criminal justice system is that partisan advocacy from both sides of a case. As a result, any presumptive proof of felony should be admitted with caution, as it is more important to maintain innocence than it is to convict deceit because misconduct and wrongdoing are ubiquitous and cannot always be tried.


[i] Kathleen M. Ridolfi, Tiffany M. Joslyn, and Todd H. Fries, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases (2014)

This article has been authored by Manav Kothary, first-year law student at Karnavati University (United World School of Law). Presently, working as a contributing author at The Blue Letters.

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