Monday, 12 June 2017

Nidhi Gupta

Forensic Ballistics: Identification of Firearms and Policy of Gun Control

http://www.lawji.in/2017/06/forensic-ballistics.html

Before delving into the nuances of forensic ballistics, the first stop should be to analyze the term itself. “Forensic” is derived from an ancient Rome where justice was dispensed in the market place known as “forum”.1Hence, “forensics” means that which belongs to the court of law. Ballistics entails the science that deals with the launching, flight behavior, and effect of projectiles, especially bullets. Therefore the study of ballistics for legal purpose or ends of justice is called forensic ballistics.[1] The law that primarily regulates guns and their proliferation is the Arms Act 1959

Identification of Firearms[2]
Guns are identified by the markings on the body and the shell, the kind of gunpowder used, and the striation marks.
The marks on the body are individualistic and they include the serial number, maker’s name, proofing marks, which can be used to find out the owner of the weapon, the place where it was produced, and the place from where he bought it. This can indicate the presence of cross border trafficking if the place of manufacture is not the same as the place where it was bought.

The separate kind of powder a weapon leaves on either the victim or nearby surroundings, is another identifying factor for firearms. Bullets contain a mixture of gunpowder and cordite which result in a burn mark on the skin of the wounded when fired. These burn marks must be examined to detect the presence of the gun powder. If Black powder is used then irregular, glass black crystals are found around the body. If the gunpowder is identified, then the type of weapon from which it was fired can be ascertained. Also, a rifle leaves small cylindrical pellets as powder. However the investigation regarding bullet powder has to be made promptly because over time the chemical reactions within the body and the atmospheric action can change the chemical composition of the powder. This if happens will be detrimental to the entire investigation.

Bullet can also be identified on the basis of striation marks on the bullet. Striation marks are etched on the bullet and the shell due to rifling. The marks on the shell, the bullet and the gun must be matched to conclude that the bullet was fired from the gun.
The identification of the firearm as the instrument of crime creates important link in the chain of circumstantial evidence.

Problems related to reliable admission of forensic firearm evidence include:

· Lack of certainty

A fundamental problem with firearms analysis is the lack of a precisely defined process for analyzing the forensic evidence. There is no fixed methodology nor is there a benchmark for similarity while analyzing the bullet and coming to conclusions about its origin. An examiner may offer an opinion when “sufficient agreement” exists in the pattern of two sets of marks, but the benchmark of this “sufficient agreement” is itself not defined[3].
To resolve this, I think, on the basis of scientific conclaves, the top experts in the field should sit together with the policy makers, to identify a benchmark for the “sufficient agreement” which is to be applied universally in India so that justice is not dependent on opinion which differs from person to person, rather it should be based on a precise set of norms and practices followed by everyone in the field. If the norms are universalized, it will make the job of the judges also easier. Present trend is that after a forensic expert reports his analysis, the judges consider the facts of the case, the analysis of the expert and corroborative evidence if so present, and only if all of them make a rational sequence, does the judge consider the forensic evidence as admissible. If the norms are universalized, then the admissibility of the evidence becomes easier.

· Lack of proof for reliability or repeat ability of forensic evidence.
There is no conclusive proof that the forensic evidence is reliable and repeatable. For addressing this issue a National Ballistics Database can be set up on the lines of National Integrated Ballistic Information Network (NIBIN)[4] of United States which is a national database of digital images of spent bullets and cartridge cases that were found at crime scenes or test-fired from confiscated weapons.

This will serve twin purpose of providing ready information which can be used in identification of weapons and bullets and over time as data accumulates, it can be used to check the reliability of the entire process.

· Assumption of individuality of firearm –
All of the forensic investigation happens with the fundamental assumption that the rifling on the barrel of the gun and other marks it leaves on the bullet are individualistic. However considering the mass production of the guns, it is possible that two guns may have the same striation marks. [5] In this case a proper inventory of the guns produced will be helpful to ensure against or at least be informed of similarity in markings of a gun.

The firearms are regulated by the Arms Act. The key provisions and controversies of the same are listed below.

The Indian Law - THE ARMS ACT, 1959
India has a strict policy in licensing of firearms which is indicated by its position in rate of ownership[6] index-110 out of 177 countries. The Arms act, under chapter III, lays down a procedure which has to be followed to gain license. Firstly an application has to be filed (section 13, clause 1), which is then verified by the officer of the nearest police station (section 13, clause 1, sub clause 1), and after appropriate payment of fees, if the licensing authority deems the person eligible, the person is granted license for the gun, making it a complicated and rigid method. In India, only a person above the age of 21, not of an unsound mind and with no previous criminal record or after 5 years of discharge from the sentence, is eligible to possess a licensed firearm. A person, under Chapter 5 (section 25) of the Arms Act is liable for imprisonment of 1-3 years and/or fine if he/ she is in contravention of section 3 (prohibition of possession of a weapon without a license).

Liberal Gun Policy V. Gun Control
The Indian Gun Policy is one of strict control. Several other countries such as the United States have a very liberal gun policy. This is actually symbolic of an ongoing debate about the need for delicensing of guns. Organizations such as National Association for Gun Rights in India (NAGRI) advocate greater rights for citizens to keep and bear arms[7] arguing that every citizen has an inherent right to private defense to protect their own or another’s body or property from harm.
On the other hand, advocates of gun-control highlight the connection between increased incidence of crime rate and free availability of weapons. There is a claim that if guns are allowed for every citizen then there will be a gun culture and overuse of guns by the citizens. This, they argue, will further reinforce the increase in crime rate. In a rebuttal, the gun-rights activists claim that guns are a tool of protection against tyranny and in a crime-prone area, if people retaliate with guns, it will have a deterrent effect on criminals who are often out for quick money and unwilling to actually fight if their life is in danger. According to gun-rights activists, such a step will lower crime rate. It is also a major tool of protection for the elderly and women in conflict-ridden areas.

Understanding the increased gun violence in US, it is fairly obvious that a degree of gun control is indeed important. It is asserted that finding a middle ground that neither compromises with the citizen’s right to private defense nor harms the public order is vital. Some basic restrictions prohibiting ex-felons, insane and minors from acquiring a gun are logical. However there are provisions in the act which are extreme:

a) Requirement of minimum age of 21 for possession of firearms- in India, a person of 18 years of age is considered an adult. If an 18 year old is considered mature enough to be called an adult, with various rights and responsibilities, in my opinion 18 is old enough an age for an individual to be able to gauge the threat he/she is in and the subsequent responsibility that comes with it. Therefore the minimum age should be 18.

b) The need for police verification- it is flawed because expecting a law-abiding citizen to first suffer preventable harm so as to apply for a gun for future protection is unreasonable..

c) Section 24 A- the section says that people in disturbed areas can’t carry weapons notified by the central government for that area. It is quite illogical because in such an area the threat an individual faces is aggravated.

Conclusion
Forensic ballistics is a “road not taken”. Although much progress has been made in the field, many questions remain that need to be answered for better adjudication. Changes need to be made in the Arms Act to balance the need for gun rights versus need for gun control. Indian policy makers need to keep in mind the Indian scenario while framing laws and realize that a strict anti-licensing policy is not helping as the criminals any ways have access to a vast illegal arms market. It is only the innocent civilians who bear the brunt of these draconian laws, and because of no fault of their own they are deprived of an opportunity to protect themselves. Therefore steps must be taken to ensure that people have controlled access to guns. More research needs to be undertaken and databases developed to ensure a reliable and adequate repository of information and processes for the forensic experts and judges to rely on.
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[1] RL Gupta’s, Ballistic Firearms and Jurisprudence (3rd edn, Law Book Company 1981) 8
[2] Jack Claridge, ‘Ballistics: The Use and Study of Firearms’(Exploreforensics, 12 February 2016) <http://www.exploreforensics.co.uk/ballistics-theuse-and-study-of-firearms.html> accessed 15 February 2016
[3] Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, united states , ‘Strengthening Forensic Science in the United States: A Path Forward’ 2006-DN-BX-0001 https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf 1,155.
[4]‘Law Enforcement Use of the National Integrated Ballistic Information Network (NIBIN)’ (NIJ, December 9, 2013) http://www.nij.gov/topics/law-enforcement/investigations/Pages/nibin.aspx accessed 15 February 2016
[5] , Jeremy R Dack , ‘Using Forensic Ballistics in Courtroom” 2014 http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1631&context=student_scholarship accessed February 15, 2016
[6] Simon Rogers, ‘Gun homicides and gun ownership listed by country’ (Theguardian, 22 July 2012)< http://www.theguardian.com/news/datablog/2012/jul/22/gun-homicides-ownership-world-list> accessed 15 February 2016
[7] ‘About NAGRI’ (gunowners,July 27, 2010) http://www.gunowners.in/about-nagri.html accessed 15 February 2016