Coma Patient and Testimonials before Court of Law

     The Rampage of Second wave of covid 19, Lock down imposed and as usual, I took asylum to OTT Platforms to vent off boredom.

     A movie Starring Manoj Bajpayee named "Silence" featured in Zee 5 has a Scene which mooted a question that a coma patient could become a witness of a crime. That Proposition slightly Sounded Strange that How a coma patient become a witness? The question mooted Should be like this "whether a Coma patient could testify as a witness?"

Coma: 

     Coma is a condition of unresponsiveness in which patients lie with their eyes closed, do not respond to attempts to arouse them, and show no evidence of aware ness of self or of their surroundings. [1]  Many Medical literatures are available and many researches are being performed in respect of conciousness & Responsiveness of Coma patients. There are so many causatives for Coma or Comatase. An acute brain injury or a cardiac arrest is one of the most major causatives of coma. There are different Stages coma based on the variance of consiousness. 

Locked in Syndrome: 

     Paralysis of voluntary muscles and the Person will have control over eye movements. It is commonly known as Pseudocoma.

Vegetative State:

     In terms of neuropathology, the vegetative state is mostly marked by cortical or white matter and thalamic, rather than brain stem, injury. A review of the evidence available up until 1994 highlighted the fact that traumatic injury was found to be associated with diffuse damage to subcortical white matter (or diffuse axonal injury). Cases of non-traumatic injury, on the other hand, were found to have extensive necrosis in the cerebral cortex, almost always associated with thalamic damage. [2] 

Chronic Coma: 

     Persistent vegetative State which is very rare. People in a persistent vegetative state wake and sleep, but show no awareness of their surroundings. They may still open their eyes, make sounds or move.

Brain Death:

      It is a death by neurological Criteria where it is the death of Brain Stem. The brain could not function anymore.

Out of the above, in the vegetative State, there is one state called minimally concious state where there is some chances being concious. Generally Studies Suggest those who are in vegitative state and minimally conscious state & Locked-in Syndrome may have some chances of consiousness and responsiveness Although the reproductible purposive behaviour may vary. 

     An interesting work by Pierre Mortin & Gary Reiss namely "Inside Coma - A new view of awareness, Healing & Hope"  - ISBN : 978-0-313-38389 is which the authors had used certain nonverbal communication techniques to communicate with Coma patients. It will be apt to quote the exact verses of the "Inside Coma" here in .

" coma work uses both conventional verbal communication as well as nonverbal communication such as body language. body language nonverbal behaviour for non verbal communication is usually e understood as the process of communication through sending and receiving wordless messages. nonverbal communication Kanaka true to any sensory channel sight sound smell touch or taste. it includes gesture posture body movement use of time and reactions to the use of space. body language hor the minimal cues and micro expressions we give through body signals often reveal feelings and emotions. they can be used to decipher hidden emotions under extremely e useful in relating to people who don't it respond verbally."

     Medically there are some methods to determine the amount of consciousness based on Traumatic brain injury TBI. Glasgow Coma scale - GCS is one of the method to determine the level of consiousness. GSC is globally accepted method to determine the level of consiousness in coma patients although this method would not consider the Eye-openings. Hence the level of consiousness could be determined. Once a person has consiousness that would be sufficient enough to understand the questions put to him and respond the same even through gestures and he could pass voir Dire test, a coma patient could testify before the court.

Haliegh Poutre Case: 

     In September 2005, a horrific incident happened to a Westfield girl namely Haliegh Poutre was brutally assaulted by her step father, Jason Strickland, after sexually abusing her was admitted In the emergency ward of Westfield hospital. The doctors diagnosed that the injuries has caused coma. Subsequently after three years when the girl was 14 year old, the doctor diagnosed that she had sustained brain death and planned to remove her life support. In fact the Supreme Judicial Court of Massachusetts had ruled that life support could be removed to render Haleigh Poutre to die with diginity. A miraculous recovery of the girl from coma state to conscious state just before teh proposed removal of life support equipment has made an interesting ‘U’ turn in the case. The girl has regained some sort of consciousness and she was able to respond the questions put to her to certain extent. 

     The trial court ruled that the prosecution may record testimony of the girl. But the prosecution had opted to rely upon the testimony of Haleigh Poutre’s Sister namely Samantha Poutre’s testimony to indict Jason Strickland and Holli Strickland (Mother of the girl as co-conspirator) of assault and battery. Both of them were incarcerated and Jason Strickland was sentenced to 15 years imprisonment.

     This case has opened a new question of law whether a coma patient could testify Even the trial court has allowed an option to the prosecutors to lead Haleigh Poutre’s testimony, they have filed a notice Superior Court in Springfield to not to call her to testify. Although the prosecution was able to establish the guilt against the accused through forensic evidence and the testimony of Samantha Poutre, this case was one of the important development of law of evidence but no authoritative ruling has been given in that aspect. 

Re-visiting Indian Evidence Act:

     The Indian evidence Act is very much clear as to the competency of persons to testify before the court of law as witness. Section 118 of Evidence Act is a general rule as to who may testify before the court. Synonymous provisions of Oaths Act shall also be taken into consideration. In fact under section 118, every person is complement to testify, Provided they should be competent enough to understand the questions Put to him and capable of giving rational answers. The Explanation to this section says even a lunatic too could be competent enough to testify. The real test for section 118 is intellectual competency of the person testifying. [3].  Understanding is that he sole test for competency. [4] . Since the court has been given with the description to decide the competency of the person testifies usually the court will adopt Voir dire test. Of course there is no presumption of incompetency of a person to testify. Likewise voir dire test is not mandatory for the court to decide the competency of witness to testify before the court.

     Likewise section 119 of the Evidence Act mentions about testimony of persons who are unable to convey by verbal means. In fact the original section stood before 2013 amendment was not exhaustive enough to include various categories of witnesses, since it restricted only to dumb witness. Moreover the court shall appoint and interpreter or educator to record the testimony of the witnesses who are unable to communicate verbally and sach testimony has to be videographed. These two provisions gives lot of room for interpretation. But any testimony given before the court of law, oath has to be administered to the person which is governed by Oaths Act. Of course administration of oath is mandatory but the failure to administer oath would not effect that competency  of the witness but it will definitely  affect the credibility of the testimony. [5]. In fact the Oaths act has nothing to do with competency of witness and such competency of the person making testimoni have to be tested by the court and it is the sole discretion of the court to decide whether a person is competent enough to testify or not. The decision as to the competency of a person to testify as witness before the court and the decision as to admissibility of the evidence as enshrined under section 136 of Evidence Act are slightly different. 

     Hence it is clear that courts are given discretion in respect of deciding the competency of the person to testify once the parameters mentioned under Section 118 are Satisfied. A coma Patient who has passed competency test would have no embargo to testify before the court. Cross examination of Such witness, usage of binary questionare to record the chief examination (which may include leading questions) are the grey area of the Subject which needs evolutional changes of existing law. Of course section 142 says that leading questions could be asked with the consent of the court in chief examination. 

      Prima facie, a person in minimal conciousness state, Locked-in Syndrome who has conciousness and responsiveness could testify before the court of law. Appreciation of Such evidence is entirely a different matter.

References:

1. The diagnosis of stupor and coma. 4th ed. Oxford University Press, 2007.

2. Kinney HC, Samuels MA. Neuropathology of the persistent vegetative state. A review. JNeuropatholExp Neurol 1994;53:548-58.

3. ILR 41 Cal 406

4. AIR 1930 Sind 129

5. AIR 1952 SC 54