Nursing Negligence

Nursing Negligence
http://www.rkmc.com/Nursing-Negligence.htm
In the health care field, the term malpractice originally encompassed only the negligent wrongs of a physician.  In the past, a distinct division existed between a nurse and a physician.  The nurse functioned within a much more defined framework.  Rather than diagnose patients, treat symptoms, or prescribe medication, it was sufficient for the nurse to wait for and then simply implement a physician’s order.  In years past it was virtually unprecedented for a nurse to criticize a physician’s order.

The role of the nurse, however, has changed.  Today, nurses commonly assume functions previously performed only by the physician.  In hospitals and clinics across the country, nurses have assumed the responsibilities such as the actual examination, diagnosis, and treatment of a patient, oftentimes without any direct supervision by a physician.

As nursing has matured into an increasingly advanced, sophisticated, specialized, and independent profession, the nurse’s role in providing patient care has also expanded – a reality that is particularly true in the face of the ever-increasing demand for cost-conscious health care.  As a result, liability for basic nursing negligence has shifted to its “professional” counterpart – malpractice liability.[1]  No other speciality relies more heavily on nurses to assess patients and evaluate treatment options than the field of obstetrical nursing, and the stakes for the patients and families involved could not be higher.

Professional Liability for Nursing Negligence

All nurses owe duties to the patients they serve.  According to the American Nurses Association, a nurse “promotes, advocates for, and strives to protect the health, safety, and rights of the patient.”[2]  Additionally, a nurse is both responsible and accountable for his or her individual nursing practice and will determine the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care.[3]  In order to ensure that they are satisfying these ethical and legal responsibilities owed to their patients, modern obstetrical nurses play a prominent and important role in the evaluation of a woman as she progresses with her labor, and the ability of the fetus to successfully tolerate the labor.[4]  As the person with the greatest exposure to the patients, it is oftentimes ultimately the responsibility of the nurse to make crucial assessments of patient status and effectively communicate the status reports to the physician also charged with the care of the patient.  When there is a breakdown in this necessary line of communication, tragic results can follow.
Nurses with specialized training or extensive experience are held to a higher standard of care, corresponding to what a reasonable and prudent nurse with the same training or experience would have done in the same or substantially similar set of circumstances.[6]  Under this standard, an obstetrical nurse with vast experience and/or training will be presumed to recognize potential problems physician who restates the order or if the nurse relies on the physician’s assertion that the physician will take full responsibility employed by members of the nursing profession.  A nurse will be liable in tort if harm ensues because he or she does not have or use such knowledge, skill, care, or diligence.[7]

Chain of Command

A nurse that works for a hospital is legally obligated to be aware of these policies and procedures and to comply with the institution’s rules and regulations.[8] Procedures, rules, regulations, and by-laws of various health care institutions can be used to define the nursing standard of care.[9]  For example, a hospital ‘s procedure manual for nurses or a nurse’s job description may set forth in detail specific rules of conduct for nurses.   On occasion, a nurse may be confronted by a physician’s order which directly conflicts with written hospital policy.  If an order is not in accord with accepted medical standards, practices, customary procedures, hospital policies, or regulations, the nurse must defer, question, and even contravene the order.[10]

Nurses have a duty to advocate for the patient through the organizational chain of command when they believe that the physician is unresponsive to concerns about the patient’s condition or is making inappropriate patient care decisions.[11]  The chain of command is a specific course of action involving administrative and clinical lines of authority established to ensure effective conflict resolution in patient care situations.  A hypothetical example of such a policy may be as follows:

A nurse with concerns about patient care reports those concerns to the attending physician.  If after this conversation the concerns are not alleviated, the nurse will proceed to take the concerns to the following people in the following order until such concerns have been alleviated:

(1) Charge Nurse
(2) Nurse Manager or Administrative Supervisor
(3) Chief of the Department
(4) Chief of Staff
(5) Director of Hospital

A nurse is generally encouraged to call on or consult with nurse supervisors or with other physicians on the hospital staff concerning those matters, and when the patient’s condition reasonably requires it, the nurse has a duty to make those calls and or consultations when they are within the ordinary care and skill required by the relevant standard of conduct.[12]  When a nurse believes that executing an order would pose a clear risk of harm to the patient, he or she must not comply with the order.[13]  If after attempting clarification and confirmation, the order is not properly clarified, confirmed, or corrected, the nurse is obligated not to carry the order out.  If the physician insists that the nurse obey the order, despite being advised of potential problems, the nurse should delay executing the order and immediately report the matter to the nurse’s supervisor, and, if necessary, to another physician or another responsible hospital official.

If for example, a nurse is concerned that fetal monitoring strips indicate a fetus may be suffering some kind of distress, and after bringing his or her concerns to the attention of the attending physician the concerns remain unaddressed, the prudent nurse will bring those concerns to the attention of the Charge Nurse, and so forth, until those concerns have been properly and fully resolved.  The nurse who initiates the chain of command policy in such a situation is actively ensuring that his or her duty to act as an advocate for the patient has been satisfied.  Where no duty has been breached, malpractice liability cannot attach.

Conclusion

Nurses caring for patients have a responsibility to be an advocate for the patient. While not bearing responsibility for making medical decisions and judgments, the nurse bears significant accountability for intervening when it appears that decisions and judgments are not consistent with the standard of care. An effective communication policy that is well known by all nursing staff and physicians can, by its very existence, improve the quality of care delivered to patients, thereby improving patient outcomes and hopefully lessening the number of catastrophically injured infants.

Additional References

1.         Karen A. Ballard, Patient Safety: A Shared Responsibility, Online Journal of Issues in Nursing, Vol. #8 No. #3, Manuscript 4 (September 30, 2003) available at www.nursingworld.org/ojin/topic22/tpc22_4.html.
2.         Frank J. Cavico & Nancy M. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557 (1995).

3.         Mary E. O’Keefe, Nursing Practice and the Law (Philadelphia: F.A. Davis Co. 2001).

[1]           See generally Rixey v. West Paces Ferry Hosp., Inc., 916 F.2d 608, 615 (11th Cir. 1990) (stating the appropriate cause of action  has now transformed into a malpractice action).  See also Lamb v. Candler Gen. Hosp., Inc., 413 S.E.2d 720, 722 (Ga. 1992); Ramage v. Cent. Ohio Emergency Serv., 592 N.E.2d 828, 833 (Ohio 1992).
[2]           American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, (Washington, D.C.: American Nurses Publishing 2001).
[3]           American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, (Washington, D.C.: American Nurses Publishing 2001).
[4]           Normal Pregnancy, Labor, And Delivery, The Merck Manual, available at http://www.merck.com/mrkshared/mmanual/section18/chapter249/249e.jsp.
[6]           See, e.g., Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32, 46-47 (Tx. Ct. App. 1993) (holding nurses liable for malpractice where they failed to correctly assess a pregnant patient, failed to use equipment to assess fetal heart tomes, and failed to provide the physician with an explanation as to why the patients records were incomplete).  See also Frank J. Cavico & Nancy M. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557, 565 (1995).
[7]           See, e.g., Berdyck v. Shinde, 613 N.E.2d 1014, 1017, 1023 (Ohio 1993).  
[8]           See, e.g., St. Elizabeth Hosp. v. Graham, 883 S.W.2d 433, 437 (Tex. App. 1994) (noting nurses failed to comply with hospital’s policies and rules in failure to restrain case); Tobia v. Cooper Hosp. Univ. Med. Ctr., 643 A.2d 1, 4 (N.J. 1994) (holding nurses committed malpractice by not complying with hospital policy of not leaving patients unattended on emergency room stretchers with side rails down); Scribner v. Hillcrest Med. Ctr., 866 P.2d 437, 441 (Okla. Ct. App. 1992) (noting evidence clearly demonstrated that nurses were either ignorant of or failed to adhere to hospital policies concerning patient identification).
[9]           See Alvis v. Henderson Obstetrics, 592 N.E.2d 678, 682 (Ill. App. Ct. 1992) (noting nursing negligence when the nurses failed to detect a baby’s breech position in time for a doctor to perform a cesarean delivery despite the hospital policy requiring that its labor and delivery nurses be able to determine the presenting part of the baby by doing a vaginal exam).
[10]          See, e.g., Volger v. Dominguez, 624 N.E.2d 56, 63 (Ind. Ct. App. 1993) (“If a nurse . . . fails to . . . question a doctor’s order when [it is] not in accord with standard medical practice and the omission results in injury to the patient, the hospital will be liable for its [nurse] negligence.”); Czubinsky v. Doctors Hosp., 188 Cal. Rptr. 685, 686 (Cal. Ct. App. 1983) (holding the nurse liable for the injuries to the patient when the nurse chose to follow the physician’s orders and leave the patient while there was a specific hospital policy requiring that one member of the surgical team remain with a post-operative patient).
[11]          Mary E. O’Keefe, Nursing Practice and the Law 140-141(Philadelphia: F.A. Davis Co. 2001).  See generally Gladney v. Sneed, 742 So. 2d 642, 646 (La. Ct. App. 1999) (noting nurse testimony “that when a nurse sees that a necessary transfer has not been made, she must go to the ‘chain of command’ and ‘above the doctor’ to take action”).
[12]          Berdyck, 613 N.E.2d at 1024; Harris County Hosp. Dist. v. Estrada, 872 S.W.2d 759, 763 (Tex. App. 1993) (stating that if a drug order is contradicted because it contains abnormally high dosages, incompatible medications, or conflicts with the patient’s allergies or physical condition, the prudent nurse will refuse the order and immediately seek corroboration from the prescribing physician or other health care provider as indicated by hospital policy).
[13]          See, e.g., Koeniguer, 422 N.W.2d at 604 (applying “danger sign to the well-being of any patient” standard).

Nursing liability for Medical Negligence

According to the Nurses Protection Group, you can be sued if:

You make a mistake while observing a patient - or if someone thinks you did.
Someone claims you made an error in reporting or recording patient care details.
A doctor claims you misunderstood his directions.
A patient, or even the relative of a patient, claims you did not provide adequate patient care or  instruction.
You are off duty and you help someone with an injury or with any health matter at all.
You can also be sued if someone under your supervision makes a mistake. In addition, if the doctor or hospital is sued instead of you, either of them could then turn around and sue you. Once you are sued, you may be required to go to court.  If the jury states that you did not provide "proper nursing procedures," you can be held personally liable.

You can also be held criminally responsible.

Litigious Areas of Nursing and the Nurse's Liability
http://allnurses.com/nursing-blogs/litigious-areas-nursing-337239.html
The areas of nursing most vulnerable today are anesthesia and midwifery. RNs in OB (L and D), those working solely in monitoring capacities (fetal heart, telemetry, etc.), and medication administration (including Long Term Care) are also included in highly litigious areas.

Of course, the Advanced Practice Nurse (APN) other than CRNA and CNM are subject to increased litigation, but the latter two more so.

And, the Neonatal Nurse Practitioner (NNP) seems to be at high risk secondary to "pain and suffering" issues.

But, nurses in general can be and often are, at risk.

Major reasons why more lawsuits are being made against nurses:
Our responsibilities have increased in complexity
Higher levels of Standards of Care (SOC)
Increased patient expectations
Pressure to increase productivity and increased patient load
Society has become highly litigious

Most common issues:
Failure to abide by the Nurse Practice Act
Failure to follow the SOC
Failure to adhere to policy/protocol/procedure
Failure to document, including lack of documentation, altered documentation, missing or "lost" documentation, incomplete documentation
Failure to recognize change in patient condition
Failure to appreciate the change in patient condition
Failure to report change in patient condition
Failure to follow up change in patient condition
Failure to communicate across the healthcare provider spectrum
Failure to monitor
Failure to act as patient advocate
Failure to provide a safe environment

Common Reasons for Errors:
Job overload (poor nurse-patient ratio)
Inexperience
Ignorance
Inadequate patient monitoring
Poor nursing judgment/critical thinking
Hesitation
Faulty communication
Ignoring patient complaints
Fatigue
Breaks in concentration
Flaws in the system
Inadequate staff training
The Nursing shortage

Ways to ensure safe practice and avoid litigation:
Be familiar with our individual Nurse Practice Act (NPA)
Adhere diligently within our Scope of Practice (SOP)
Know the SOC for our specialty area(s)
Question authority
Educate ourselves regarding evidenced-based practice
Stay abreast of changing trends in nursing through continuing education
Educate ourselves regarding medical-legal issues
Make sound, safe, and practical nursing judgments for all our patients

Finally, a kind word and non-defensive attitude with a patient turns away many a lawsuit
>>
Nursing Law & Liability
http://old.texarkanacollege.edu/~sdroske/ch8legal.htm
Catalano, chapter 8

At the end of this unit, you should be able to:

Discuss fundamental information on the laws that directly govern nursing, particularly the Nurse Practice Act.
Understand how nursing law is applied in court.
Describe the role of the state board of nursing.
Define standards of care and discuss how these standards may be used as evidence during malpractice litigation.
Discuss the legal significance of a nursing license

As the 21st century begins, health care restructuring and the need for cutting health care costs are having a tremendous effect of how nurses care for patients. Profound changes in the legal and ethical dimensions of nursing practice have occurred. Enormous ethical and legal challenges face nurses today as they strive to provide high-quality care in a time of shrinking health care budgets. In times like these, nurses need accurate and up-to-date information on nursing law and ethics.

Some of the challenges facing nurses today include:
Providing high quality care with less, as hospitals with declining operating budgets are forced to reduce nursing staffs. At the same time, nurses are responsible for managing larger patient loads than before.
Shorter hospital stays for patients. Nurses must provide more care and more effective patient teaching in a shorter amount of time.
Many hospitals are replacing some RNs with lower-paid, unlicensed assistive personnel (UAPs). Nurses are held legally responsible for the care provided by these UAPs, thus heightening nurses’ liability.
Courts of law continue to expand the definition of liability, holding nurses to higher standards. As nurses take on greater responsibility they become more accountable under the law.Even the most cnscientious and competent nurses have no guarantee that they won’t be named in a malpractice lawsuit.
Patients are aggressive in asserting their rights and many do not hesitate to sue if they feel they have cause. Nurses must be constantly vigilant when using restraints, giving medications, obtaining information, witnessing informed consent, providing patient teaching, and performing all nursing tasks.
Nurses must act quickly and make crucial decisions during high-pressure patient care situations. All the while, the nurse must keep in mind the necessity of avoiding malpractice liability. *
*This information is adapted from an excellent book, Nurses’ Legal Handbook, 3rd edition. Springhouse: 1996. ISBN 0-87434-849-8

Laws are rules to help protect people and keep society functioning.

As a nurse, you must understand and accept the legal responsibilities of your practice. The courts expect the nurse to obey the laws the affect his/her practice. Ignorance of the law is not a valid defense in any legal case.

Nurses must be familiar with their state’s nurse practice act and the role of the state board of nursing. They must also be familiar with the standards of care and how these standards may be used as evidence during malpractice litigation. Finally, nurses must know the significance of their nursing license and what to expect if disciplined for violating its provisions.

Two major sources for laws in U.S. are STATUTORY & COMMON.

Statutory Law

Statutory laws are:

legislated laws enacted by Congress (FEDERAL STATUTES)

state drafted laws (STATE STATUTES)

laws drafted by cities (CITY ORDINANCES, CODES, REGULATIONS)

Common Law

Different from statutory. Common law has evolved from decisions of previous legal cases that form a precedent.

Common law extends beyond scope of statutory.
(e.g. no statues require negligent person who caused injury to another to compensate that person.)

Court decisions have repeatedly ruled that the injured person be compensated.

Common laws involve negligence or malpractice.


Divisions of Law: Criminal & Civil

Criminal Law

Concerned with protecting society.

Violations are punished at federal, state, county, and city level.

Two classifications of CRIMINAL LAW:

Misdemeanor – minor offense
Felony – major offense
Nurses become involved under Criminal Law by
not renewing their license
illegal diversion of drugs
intentional or unintentional deaths
Civil Law
Nurses are more often involved in violations of civil law than of criminal law.

Most often involves nurses violation of individual’s rights

Terminology

Plaintiff: one bringing dispute to court

Defendant: one accused of crime

Answer: other side of the story

Burden of proof: rests with plaintiff

Criminal action: rendered when person is brought to trial and convicted

Expert Witness: one who testifies in malpractice cases to help establish a standard of care

Tort Law

A tort is a wrongful act committed against a person or his property

A tort is a violation of the civil law.

Person committing the tort is a tort-feasor and is liable for damages

Torts involve:

violation of person’s legal rights

violation of a standard of care that causes and injury

Unintentional Torts
Negligence is primary form of unintentional tort.
Negligence is the commission or omission of an act that a reasonable and prudent person would do in a similar situation or would not have done.

Medical Professional Liability (malpractice)

Malpractice is a type of negligence for which professionals can be sued.

Because of their profession, nurses are held to a higher standard of conduct than lay persons.

R.N. is charged with utilizing the degree and skill and judgment commensurate with his education, experience and position. (e.g. reasonable & prudent to put up side rails)

4 Elements Required for Claim of Negligence:

Duty was owed to client (professional relationship)
Breach of Duty – professional violated duty and failed to conform to standard of care
Causality – failure to act by professional was proximate cause of the resulting injury
Damages – actual injuries resulted from breach of duty

Examples of Nurse malpractice:
failure to question Dr’s orders if not clear

leaving objects in patient during surgery

failing to assess

failing to obtain informed consent

failing to report change in patient’s condition

failing to do patient teaching

failing to report incompetence of a peer

failing to take action for patient’s safety

(eg: not putting the side rails up on a bed of a sedated or confused patient)

"Professional negligence" is the same as malpractice.

If nurse is found guilty:

may have to compensate monetarily

may have to pay medical expenses

may have to pay out-of-pocket expenses

may have to pay wages lost by patient

may have to pay punitive damages (if acted in a willful manner)


Intentional Torts
A willful act that violates another person’s rights or property.
Differs from malpractice in that the nurse must intend to bring about the consequences of the act
nurse’s act must be intended to interfere with the client or his property
the act must be a substantial factor in bringing about the injury or consequences
Common intentional torts are:
Assault

Battery

False imprisonment

Intentional infliction of emotional distress

It is not necessary to prove that the injury occurred NOR is an expert witness required.

May fall under criminal law if gross violation of standard of care.

Assault: threat or attempt to touch or do bodily harm to another person
Battery: actual harmful or unwarranted contact with another person without his or her consent. (e.g. restraints or injection without consent)
False imprisonment: occurs when a client is confined or restrained with intent to prevent him from leaving the hospital (e.g. restraints, detaining against his will, threats or medications)
Intentional Infliction of Emotional Distress a common tort
(e.g. mother who wanted to view her stillborn baby and was haded the baby in a gallon jug of formaldehyde)
Quasi-Intentional Tort
Mixture of unintentional & intentional torts
A voluntary act directly causing injury or distress without intent to injure or to cause distress.

Usually involves situations of communication and often violate a person’s reputation, personal privacy, or civil rights



Defamation of Character

Most common of quasi-intentional torts harming a person’s good name

Injures a person’s reputation

Slander: spoken

(eg: saying something about a person that is not true and that damages his/her reputation)

Libel: written

Invasion of privacy
Violation of a person’s right to protection against unreasonable and unwarranted interference with one’s personal life
To prove invasion has occurred, client must show:

Nurse intruded on client’s seclusion & privacy
Intrusion is objectionable to a reasonable & prudent person
Act intrudes on private or published facts or pictures of a private nature
Public disclosure of private information was made
Examples of Invasion of Privacy
Use of client’s name or picture for sole advantage of health care provider
Intruding into the client’s private affairs without permission
Giving out private client information over the telephone
Publishing information that misrepresents the client’s condition
Exception: child abuse or rape. Nurse is legally bound to report evidence of child abuse and would be acting appropriately if she/he gave information beyond the client’s right to privacy. Rape must be reported to the police.
3. Breach of Confidentiality
When a client’s trust and confidence are violated by public revelation of confidential of privileged communication without the client’s consent
Privileged client information can be disclosed only upon authorization by the client

Disclosure of information to family members is not acceptable unless authority is given by the client.

Nurses who overhear privileged communication or information are held to the same standards as a physician with regard to that information.





Facing a Lawsuit

There is a higher probability now than ever before that a nurse will be involved in a malpractice action sometime in her career. Knowledge of the litigation process increases the nurse’s understanding of how his/her conduct might be evaluated before the courts.

Statute of Limitations

A malpractice suit against a nurse for negligence must be filed within a specified time.

1-6 years is usual range with most common duration being 2 years.

The Complaint

Begins the litigation process

Describes the incident that initiated the claim of negligence against the nurse

Specific allegations including the amount of money sought are stated.

Plaintiff: usually a client or family member of a client alleged to be injured

Defendant: person or entity being sued as nurse, physician, &/or hospital

First notice of a lawsuit occurs when the defendant is officially notified or served with the complaint.

Due process is the right of all defendants.

The Answer

Defendant must respond in writing to the allegations within a specific time frame

This response is "the answer"

If insured, the insurer will assign a lawyer to represent the defendant nurse

The Discovery

Uncovering of all information relevant to the malpractice suit

Interrogatories: a series of questions that the plaintiff’s lawyer deems important

Requests for production of documents (medical records, care plans, etc)

The Deposition

If false testimony is given, can be charged with perjury

Formal legal process involving the taking of testimony under oath by court report (p 182)

Deposition testimony is reduced to a written document called an "affadavit".

The Trial

May take place years after complaint is filed

"Voire dire" process or jury selection

Opening statements

Plaintiff’s side presented first

Each witness or party subject to direct examination, cross examination, and re-direct examination

Direct examination: open ended questions by the attorney ("tell me about")

Cross examination: opposing lawyer asks questions to elicit short answers

Closing comments

Jury or judge for deliberaton

Decision or ruling made about the case can be appealed if either party is not satisfied.

Possible Defenses to a Malpractice Suit

Contributory Negligence Laws

Clients are not allowed to receive money for injuries if they contributed to that injury in any manner. (e.g. if nurse forgets to raise the bedrail but instructs the client to turn on the call light, then client, in part, contributed to his own injury and cannot receive compensation)
Comparative Negligence Laws
The award is based on the determination of the percentage of fault of both parties.

If the client is 50% or more at fault, no award will be made.



Assumption of Risk

If informed consent is signed, then the client is assumed to have been informed

If the complication is named in the list of complications on the consent form, then client usually has no grounds to sue.



Good Samaritan Statutes

Protect health care providers in emergency or disaster situations IF care is given according to established guidelines and within the scope of practice of that professional.
Some limitations exist:
Professional is protected only for those acts within that person’s level of education. (eg a nurse could be sued if she performed surgery or did a trach on an accident victim. These actions would be beyond her scope of practice.)


Informed Consent
Voluntary permission by a client to carry out a procedure on the client

The person performing the procedure has the responsibility to obtain th einformed consent.

Often, the physician gives the nurse the consent form and says "Get the client to sign this". Informed consent can be given only after the client receives sufficient information of the procedure, risks involved, outcome hoped for and consequences of not having treatment.

The physician should provide most of this information. The nurse can reinforce the physician teaching, but should not be the only source of information for the informed consent.

Exceptions to informed consent:

In emergency situations when the client is unable to give consent
In situations where the health provider feels that it may be medically contraindicated to disclose the risk and hazards because it may result in serious ill effects.
Delegation versus Supervision
Delegation: assigning or designating a competent individual the responsibility of carrying out a specific group of nursing tasks in the provision of care for certain clients.

The person authorized to perform tasks is acting in the place of the RN and may be carrying out tasks that generally fall under the RN’s scope of practice.

Supervision: the initial direction and periodic evaluation of a person performing an assigned task to ensure that he or she is meeting the standards of care.

Although delegation almost always requires supervision, it is possible to have supervision without delegation.

When RNs delegate tasks, they are legally responsible for supervising that person to ensure that the care given meets the standards of care.

Legally, the power to delegate is restricted to professionals who are licensed and governed by a statutory practice act.

RNs are considered professionals and can delegate independent nursing functions to other personnel. LPNs/LVNs do not have delegatory authority.



Patient Self-Determination Act of 1990

Purpose was to encourage people to discuss and document their wishes concerning the type of treatment and care they want so it will ease the burden on their families and providers when it comes time to make a decision.

Two Types of Advanced Directives

Living Will: States what health care a client will accept or refuse when client is no longer competent to make such decisions.
Medical Durable Power of Attorney (Health care proxy): Designates another person to make health care decisions for a person if the client becomes incompetent or unable to make such decisions. Each state outlines its own requirements for executing and revoking the medical durable power of attorney and living wills. (e.g. Nancy Cruzan: U.S. Supreme Court stated that a living will would have been sufficient evidence of Nancy’s wishes to sustain or to remove her feeding tube. Burden of proof was put on Nancy’s family to show that she would not have wanted to continue living in this manner.)
The Nurse’s Role in Advance Directives
Must know the laws of the state pertaining to advance directives and client’s rights

Must know the policies and procedures of the institution

Not all clients can make decisions to formulate advance directives

Discrimination must be prevented against clients and their families based on their decisions regarding their advance directives.

Do Not Resuscitate (DNR) Orders

Although DNR orders may be included in an advance directive, DNR orders are legally separate from advance directives.

For the nurse to be legally protected, there must be a WRITTEN physician’s order for a "no code" or DNR in the client’s chart.

The nurse must be familiar her his/her particular hospital’s policy concerning DNR orders.

The nurse must also know whether there is any law that regulates who should authorize a DNR order for a client who is unable to make this decision.

Nurses may face legal dilemmas when dealing with confusing or conflicting DNR orders.

(eg: it may be difficult to interpret a DNR order when it ahs been restricted, for instance, "do not resuscitate except for medications and defibrillation? or "no CPR or intubation")

Lack of proper documentation in the medical records indicating how the DNR decision was reached can be an important and crucial issue if a medical malpractice case is involved and it is disputed whether or not the client or family actually gave consent for a DNR order.

It is important that nurses not stigmatize patients who have DNR orders. (eg the practice of placing "dots" over the patient’s bed or on the wristband to identify a DNR patient)

It would be extremely unprofessional to give "less than the best" care because "the client is going to die anyway". This abandonment can jeopardize care of the DNR client.

Do not resuscitate orders must be followed regardless of the nurse’s personal values.

Standards of Care

Nurses are professionals and are therefore held to a higher standard of care.

Standards of Care: the yardstick to measure the actions of a nurse involved in a malpractice suit.

What action would be taken by a reasonable person who was placed in the same or similar situation.

Nurses are judged against the standards that are established within the nurse’s profession and specialty area of practice.

ANA as well as specialty groups within nursing publish standards of care.

External Standards

Guidelines developed by various nursing specialty practice groups

Federal agency regulations

Nursing standards developed by ANA, State Nurse Practice Act

Criteria from accrediting agencies as the JCAHO

Internal Standards

Standards in specific hospital policy and procedure manuals that relate to the nurse in the particular institution (as job description)

National criteria have replaced the locality rule standard. Nurses are held to both the local and the national standard.

Standards are merely guidelines.

In a negligence lawsuit, expert witnesses (persons who are experts in nursing) would be subpoenaed to testify and describe standards of care to the judge and/or jury.

Nurses are held to these professional standards of care when they are on duty, no matter what. (tired, sick, understaffed, etc.)

This is also true of nursing STUDENTS!! Students are accountable for any actions they perform.

(students need malpractice insurance, too)

Nurse Practice Act (NPA)

Defines nursing practice and establishes standards for nurses in each state

Each state has a nurse practice act that protects the public by defining the legal scope of nursing practice. The state nurse practice act is the most important law affecting a nurse’s practice. As a nurse, you will be expected to care for your patients within defined practice limits. If you give care beyond those limits, you become vulnerable to charges of violating the state nurse practice act.



Most NPA’s tend to have similar wording based on ANA’s model published in 1988.

The NPA includes:


scope of practice
requirements for licensure and entry into practice
create & empower a state board of nursing to oversee the practice of nursing
disciplinary actions and revocation of a nursing license
declaratory order

Nurse Practice Acts tend to be broadly worded. Understanding your state’s nurse practice act will help you stay within the legal limits of nursing practice.

Sometimes the NPA is difficult to interpret. This is partly because the NPA is a statutory law. Any amendment to a NPA must be made through a slow legislative process. Because this legal process is so slow, amendments to the NPA lag far behind the progress of changes in nursing.


1.  Scope of practice:
The NPA defines the scope of nursing practice with respect to the medical profession, as well as how
nursing practice relates to supervising unlicensed assistive personnel.

     Medical practice vs. nursing practice:  It is sometimes difficult to determine exactly where
     medical practice begins and nursing practice ends.  But not knowing exactly where nursing practice
     begins and ends can create some legal risks.

       Law forbids non-MDs from practicing medicine (any act of diagnosis, prescription, surgery, or
treatment).  But there is sometimes overlap between nursing and medical practice.  The courts are often
called upon to decide if a specific action constitutes medical practice.  (eg area of midwifery)
Some court decisions have concluded that the doctor need not be present during patient care if he has
delegated a task to a nurse by means of a "standing order". Standing orders usually allow nurses to
perform tasks that involve overlap of nursing and medical practice -- especially in areas such as ICU,
CCU, ER

     Nursing practice and unlicensed assistive personnel (UAP): Skyrocketing health care costs have
     forced hospitals to use more unlicensed assistive personnel to help with patient care.
     Unfortunately, educational requirements and on-the-job responsibilities for UAPs are not uniformly
     defined by statues.  RNs may not clearly understand what UAPs under their supervision may or
     may not legally do.  Nurses are responsible for the education, training, and supervision of UAPs
     who participate in direct patient care. If you supervise UAPs, they are essentially practicing on
     YOUR license.  Nurses can limit their liability by encouraging their supervisors to establish policies
     that clearly delineate the repsonsiblities of RNs, LPNs, and UAPs. The nurse who establishes a
     solid working relationship with his/her UAPs, and who communicates openly and clearly with
     them, is less likely to get into potentially litigious situations.

     Licensing laws help you to avoid liabilities by defining the scope of your professional nursing
     practice.  If a nurse is named in a malpractice lawsuit, state licensing laws will be used as partial
     evidence to determine whether the nurse acted within the legal limits of his/her profession.

Nurse Practice Acts tend to be broadly worded. Understanding your state’s nurse practice act will help
you stay within the legal limits of nursing practice.

Sometimes the NPA is difficult to interpret. This is partly because the NPA is a statutory law. Any
amendment to a NPA must be made through a slow legislative process. Because this legal process is so
slow, amendments to the NPA lag far behind the progress of changes in nursing.

2.  Requirements for Nursing licensure:
NPA contains licensing laws.
These establish qualifications for obtaining and maintaining a nursing license.(educational qualifications;
license-application procedures & fees; authorization to use the title "RN" or "LVN"; grounds for license
denial revocation, or suspension; license-renewal procedures)
Most state NPAs allow nursing students to provide patient care, provided no fee is involved.
Failing to renew your nursing license on time consititutes practicing nursing without a license and  is
punishable by a fine and/or suspension of the license, and /or imprisonment.

3.  State Boards of Nursing
In every state and Canadian province, the nurse practice act creates a state or provincial board of
nursing. The NPA authorizes this board to administer and enforce rules and regulations concerning the
nursing profession and specifies the makeup of the board (the number of members and their educational
and professional requirements). Usually the board is made up of practicing RNs. Some states may
include hospital administrators and consumers, also.

The board of nurse examiners is bound by the provisions of the Nurse Practice Act.

The nurse practice act is the law… the board can’t change or waive any of its provisions.


4.  Disciplinary action
The state board of nursing can take disciplinary action against a nurse for any violation of the state's
nurse practice act.  The board of nursing has authority to discipline a nurse if she endangers a patient's
health, safety, or welfare.  Depending on the severity of the violation, a state board may formally
reprimand a nurse, place her on probation, refuse to renew her license, or suspend, or even revoke, her
license.  Other disciplinary action may include imposing a probationary period or fine and restricting the
nurse's scope of practice.
The most common punishable violations are:

     conviction of a crime involving "moral turpitude", if the offense bears dierectly on whether the
     person is fit to be licensed as a nurse.
     use of fraud in obtaining a nursing license
     incompetence due to negligence or physical/psychological impairments
     alcohol or drug abuse
     unprofessional conduct

5.  Declaratory order
A person who is enrolled or planning to enroll in an educational program that prepares the person for
initial licensure as an R.N., and who has reason to believe that he/she may be ineligible for the license,
may petition the board for a declaratory order as to the person's elibibility for a license.  The board will
investigate the petition and the person's eligibility for licensure.
The most common cause for ineligibility is conviction of a crime.



Texas State Board of Nurse Examiners
http://www.bne.state.tx.us
7600 Burnet Rd., Suite 440
Austin, TX 78757
(512) 452-0645

Arkansas State Board of Nursing
http://www.ark.org/nurse/index.html
University Tower Building
Suite 800
1123 South Unversity
Little Rock, AR  72204-1619
(501) 686-2700


As nurse’s role expands, so does the legal accountability of the role itself

EVIDENTIARY VALUE OF EXPERT OPINION UNDER INDIAN EVIDENCE ACT

EVIDENTIARY VALUE OF EXPERT OPINION UNDER INDIAN EVIDENCE ACT
Dr. A. Krishna Kumari
http://works.bepress.com/cgi/viewcontent.cgi?article=1004&context=krishnaareti&sei-redir=1&referer=http%3A%2F%2Fwww.google.co.in%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dexpert%2Bevidence%26source%3Dweb%26cd%3D2%26ved%3D0CDsQFjAB%26url%3Dhttp%253A%252F%252Fworks.bepress.com%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1004%2526context%253Dkrishnaareti%26ei%3DMGjQTtrGB5HprQeN3OWdAw%26usg%3DAFQjCNF-Wj1iMQX2LGX7E201vjnpgC5uTg#search=%22expert%20evidence%22
?
Introduction:
Law of evidence allows a person  –who is a witness to state the facts related to either to a fact in issue or to relevant fact, but not his inference. It applies to both criminal law and civil law. The opinion of any person other than the judge by whom the fact has to be decided as to the existence of the facts in issue or relevant facts are as a rule, irrelevant to the decision of the cases to which they relate for the most obvious reasons- for this would invest the person whose opinion was proved with the character of a judge1. The rule however, is not without its exceptions. “If matters arise in our law which concern other sciences or faculties, we commonly  apply for the aid of that science or faculty which it concerns”.2
The expert witness is, thus, an exception to the exclusionary rule and is permitted to give opinion evidence. The Judge is not expected to be an expert in all the fields-especially where the subject matters involves technical knowledge. He is not capable of drawing inference from the facts which are highly technical. In these circumstances he needs the help of an expert- who is supposed to have superior knowledge or experience in relation to the subject matter. This qualification makes the latter’s evidence admissible in that particular case
though he is no way related to the case. Because an expert has an advantage of a particular knowledge vis-à-vis a judge who is not equipped with the technical knowledge and hence not capable of drawing an inference from the facts presented before him.

Who is an expert?
An expert is a person who devotes his time and study to a special branch of learning. The Supreme Court of United State of America defined an expert as a person who possesses knowledge and experience not possessed by mankind in general. The Courts in India in their judgments described an expert as a person who has acquired special knowledge, skill or experience in any art, trade or profession. Such knowledge need not be imparted by any University.  He might have acquired such knowledge by practice, observation or careful study. The expert operates in a field beyond the range of common knowledge. When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting (or finger
impressions)3, the opinions upon that point of persons especially skilled in such foreign law, science or art (or in questions as to identity of handwriting) 4 (or finger impressions)5 are relevant facts 6. Such persons are called experts. To sum up an expert is one who is skilled in any particular art, trade or profession being possessed of peculiar knowledge concerning the same 7.

Expert as a witness:
The phrase expert testimony is not applicable to all species of opinion evidence. A witness is not giving expert testimony who without any special knowledge simply testifies as to the impressions produced in his mind. Question of common knowledge such as whether the hammering of the steel plates with hammers weighing 10 kg cause noise or not does not need an expert.  Expert evidence is often sought in the matters of handwriting, age, on weather, general conduct of a business etc. A person having special knowledge of the value of land by experience though not by any profession can be treated as an expert 8 . All these years the Courts in India have been accepting the testimony of a goldsmith about the metal being gold and the extent of its purity though the test is very crude carried out by rubbing the metal on the touch stone 9. Now as the technology has been invented to test the purity of gold- the evidence by goldsmiths might become redundant.

The Cases in which Expert Evidence can be Admitted:
The Supreme Court of New Hampstead has classified the cases under three heads and declared that experts may give opinions on the following:
1. Questions of science, skill or trade or other subjects.
2. When the subject matter of enquiry is of such a nature that inexperienced persons are not likely to form a correct judgment over it without assistance.
3. When the subject matter of investigation so far as it partakes of the nature of a science as to mean a course of previous habit or a study in the attainment of knowledge of it 10.

Expert Evidence in Indian Evidence Act:
Expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Act allows that when the subject matter of enquiry partakes of science or art as to require the course of previous habit or study and in regard to which inexperienced persons are unlikely to form correct judgment.
Therefore the opinion of persons having special knowledge of the subject  – matter of the enquiry and described as experts is made relevant.  However, whether a particular person is a competent witness or not is to be proved in the Court of Law before his testimony is admitted. The competency of an expert is a preliminary question before the Judge. An expert need not be a paid professional expert who makes living by giving such evidence, but he must have devoted sufficient time and study to the subject so that he can make his evidence trustworthy.
Subject Matters of Expert Evidence:  The subjects of expert testimony mentioned by the section are foreign law, science, art and the identity of handwriting or finger –impressions. Expert on any other subject is not admissible.11  This was the position in 1954. No more it is the law. Law related to expert evidence has developed in a piece meal method growing hand by hand with the development of technology in every field.  The word science or art if interpreted in a narrow sense, would exclude matters upon which expert testimony is admissible such as matters related to trade, handicrafts, ballistics and many more. Every business or employment which has a particular class devoted to its pursuit is an art or trade.12
 When the question of foreign law is raised the evidence of professional lawyer or the holder of an official situation which requires and therefore implies legal knowledge or a teacher of law is admissible. As far as science and art concerned they are to be broadly construed so as to include all subjects on which a course of special study or experience is necessary to the formation of an opinion and embrace also the opinion of an expert in footprint as well 13.  The opinion of the medical men are admissible upon questions within their own province such as insanity, the causes of diseases the nature of the injuries, the weapons which might have
been used to cause such injuries the cause of death, the weapons might have been used in causing the death, medicines, poisons, the conditions of gestation, effects of hospitals upon the health of the neighborhood etc., Other expert evidence includes those of naturalists as to the ability of fish to overcome obstacles in a river: those of chemists as to the value of a particular kind of guano as a fertilizer: the safety of a non-explosive camphene and fluid lamp: the constituent part ofa certain chemical compound; the effects of a particular poison: fermentation of  a liquor; those of geologists as to the existence of a coal seams: those of botanists as to the effects of working coke ovens upon trees in the neighborhood: those of persons of specially skilled in insurance matters, such as the opinion of an insurance agent and examiner that a partition in a room increased the risk in a fire policy: an so with other branches of science.14 In the field of art the opinion of artists are admissible as to the genuineness or value of a work of art: the opinion of a photographer as to the good execution of a photograph, the opinions of engineers regarding constructions, erection of dams etc., are admissible. The list is only illustrative.
It is not exhaustive. However, it depends on the discretion of the judge to accept or reject such evidence.
S.47 of the Indian Evidence Act exclusively deals with the opinion as to the handwriting 15. The explanation further elaborates the circumstances under which a person is said to have known the disputed handwriting.16
 Under this section a person who is deposing the evidence need not be a handwriting expert. Indeed the  knowledge the general character of any person’s writing which a witness has acquired incidentally and unintentionally, under no circumstance of bias or suspicion, is far more satisfactory than the most elaborate comparison of even an experienced person. One can get acquainted with others handwriting in many ways. The former might have seen the latter writing a particular handwriting. He might be receiving letter from the latter regularly. A superior officer might have seen his subordinate’s writing on several occasions and vice versa. But, the evidence given by a person who has insufficient familiarity should be discarded 17. Indian Evidence Act insists that documents either be proved by primary evidence or by secondary evidence.18
 S.67 of the Indian Evidence Act prescribes the mode of proving the signature in a document. 19 However,
the opinion as to handwriting is admissible only if the condition laid down in S. 47 is fulfilled, that is the witness is established to have been acquainted with the writing of the particular person in one of the modes enumerated in this section.20 However, the opinion of an expert is relevant when the Court has to form an opinion on a point of science or art. At times expert opinion differs on proven or admitted facts. But when the facts are not admitted the Court will have first to come to a conclusion on the evidence as to what facts have been proved and then to apply to such facts the various expert opinions which have been offered. The opinion of an expert in handwriting should be received with great caution and should not be relied on unless corroborated.21 But no such corroboration is need in the case of finger prints. Of course, an expert can always refresh him memory by referring to the text books. A doctor can refer to medical books, a valuer to the price lists, a foreign lawyer to legal codes, texts and other journals.
At one time expert evidence is limited to medical doctors, engineers, architects, stockbrokers etc. Now the science and technology have reached to such heights no more the expert evidence is confined to the above mentioned but also to the scientists in each field.  As far as criminal law is concerned ballistic experts, forensic experts, scientists who decide the legitimacy by DNA tests, chemical examiners, psychiatrists, radiologists and even track-dogs are playing a vital role in investigation of crimes and their evidence is admissible in the court of law.
Scientific evidence is  evidence which serves to either support or counter a scientific  theorem or hypothesis. Such evidence is expected to be empirical and properly documented in accordance with scientific method such as is applicable to the particular field of inquiry. Standards for evidence may vary according to whether the field of inquiry is among the natural sciences or social sciences 22. Scientific evidence is demonstrative evidence. Unlike oral testimony which depends on the deposition of a witness, scientific evidence is obtained by using the scientific method. Scientific evidence which is admitted in the trial must not only be relevant but also trustworthy. An expert witness is called to testify about the reliability of the scientific evidence sought to be introduced at trial.23 Foot Prints: Footprint identification is reliable. Our bare feet contain friction ridge patterns which are unique to each individual. Hence, the finger prints and footprints found at the scene of offence can be used to help identify the offender. They can be used for identifying the victim as well. The
validity of the scientific method used for fingerprinting and foot printing is accepted by the Courts. In Pritam Singh vs. State of Punjab 24 disputed footprints in blood near a dead body and going towards the bathroom, were compared with those of the accused taken in printer’s ink.  The expert gave evidence giving points of nine similarities in respect of the right foot and ten in respect of the left foot: and three dissimilarities only in each case and explained the dissimilarities with reference to the different densities of blood and ink. It was held that the comparison stood the test well and under the circumstances these foot impressions in blood near the place of the incident, were proved to be those of the accused.


Deoxyribonucleic Analysis (DNA)
Each person's genetic makeup contains DNA. This differs from individual to individual. DNA can be
obtained through blood, saliva, semen, or hair. This helps in identifying a person. If a drop of blood or a strand of hair is found at a crime scene, it can be compared to a person's known DNA to see if there is a match, thereby linking the person to the crime. An expert witness can give an opinion about the likelihood that the blood that was found at the crime scene came from the individual whose sample was compared. DNA analysis is also used to establish paternity. Experts believe that the ability to link the culprit to the crime scene through his DNA prints is unquestionable as unlike conventional fingerprints that can be surgically altered, DNA is found in every tissue and no known chemical intervention can change it. 25 Tracker Dog: In India we have yet to accept the evidence of tracker dog as a substantive piece of evidence. The Supreme Court of India opined that even the evidence of dog-tracking, if admissible also does not have much weight in the present state of scientific knowledge. 26 The same was reiterated in another case 27 where it was held that evidence of tracker dog was of little importance.
No adverse inference could be drawn against the prosecution on the ground tracker was not examined by the prosecutor. However, it was observed that in construing the words science or art a static view can be no longer be tenaable since expert testimony on subjects like telephony, psychiatry, identification of foot marks and tracker evidence is now admitted 28 . As recently as in 1993 the Court held that tracker dog’s evidence must be scrutinized and it reliability is as good or as bad as any other piece of evidence. 29
Lie Detector: Generally Courts refuse to admit the results of a polygraph test as evidence. Polygraph measures a person's unconscious physiological responses, such as breathing, heart rate, and galvanic skin response while the person is being questioned. The underlying theory is that stress occurs when a person lies and that this stress is measured by changes in the person's physiological responses. There is a concern that an individual can conceal stress when he or she is lying. Polygraph tests are also considered unreliable because it is not possible to tell whether the stress that is measured during the test is caused by the test itself or by a lie 30.
Ballistic Expert Evidence: Ballistics is the science that deals with the motion, behavior, and effects of projectiles, especially bullets, gravity bombs, rockets, or the like; the science or art of designing and hurling projectiles so as to achieve a desired performance 31.Where the opinion is given by the Expert of Ballistics who after conducting all the tests deposes in the Court of law, there is no reason to distrust his opinion. It can be accepted.32 That does not mean in spite having direct evidence, one should call for the opinion of the expert.  In every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may and though, on the record, there may no reason to doubt the said direct evidence 33.
Medical Expert: As far as medical experts are concerned the Courts in India have different opinions. In certain cases they have accepted the evidence. The husband alleged his wife was pregnant at the time of marriage. The doctor who was an expert in mid-wifery had deposed the contention to be true. Though he was not gynecologist, the Court accepted his evidence.34
 But, again the Court held in other cases medical evidence is hardly conclusive and decisive, because it is primarily an evidence of opinion. The Court has to consider not merely medical evidence but also the other evidence and circumstances appearing on the point.35
 But as far as post mortem reports are concerned sufficient weightage is given to the doctors’ deposition who had conducted the postmortem.  When the post mortem report is more favourable to the accused and there are discrepancies between the medical evidence and the inquest report, the benefit of discrepancies should be given to the accused by accepting the post-mortem report instead of inquest report.36
Where the report of the serologist stated that the blood on the two items of clothes was human blood and the items belonged to the accused, they connect him with crime.37
 Regarding injuries and time of death the evidence of the experts  is accepted depending on the other circumstances.
Regarding age positive evidence furnished by birth register, by members of the family, with regard to the age, will have preference over the opinion of the doctors: but, if the evidence is wholly unsatisfactory, and if the ossification test in the case is complete, such test can be accepted as a surer ground for determination of age.
38
 As far as paternity is concerned now it has become very usual to direct the use of blood tests.  Blood groups according to the scientists have a causative relation between the trait of the progenitor and that of the progeny. In other words the blood compositor of child may be of some evidence as to the child’s paternity. The blood group tests are useful only to exclude the possibility that a man is the father. Sophisticated blood tests are now
being adopted which are so advanced as capable of providing a very high or low probability of paternity. Tests made of the DNA can provide what can practically be regarded as certainty in paternity cases. 39
The expert opinion is not confined to handwriting alone. The opinions in relation to customs are also admissible according to S. 48 of Indian Evidence Act.40
 Section 13 41and S.32 (4) also mentions about custom.
42S.13 deals with all rights and customs, public, general and private and refers to specific facts which may be given in evidence. The latter is a hearsay evidence where a secondhand opinion can be admissible in the Curt of law where the person who opined cannot be brought before the Court ( because of death or inability)  upon the question of the existence of any public right or custom or matter of public or general interest made ante litem motan. But S.48 deals with the evidence of a living witness, who stood before the Court sworn to depose and subject to cross examination. Not only custom under this section opinion regarding usage is also admissible.
The only condition Courts insist is that while deposing about custom it is to be established by unambiguous evidence. S.49 43 is about the opinions regarding tenets and S.50 44 is about the opinion on relationships. S.32 (5) of Indian Evidence Act 45 also is about the admissibility ofopinions in relation to relationships. The Apex Court in several cases made it clear that relationship proved under any other provision other than these provisions is inadmissible. But, there is a basic difference between these two provisions. Section 32 (5) relates to statements of deceased persons only where as S.50 takes into consideration the opinion of living persons also.  The essential features of S.50 are there must be a case where the Court has form an opinion as to the
relationship of one person to another, in such a case the opinion is formed by conduct as to the existence of such relationship, he must have been a member of the family or otherwise has special means of knowledge on the particular subject of relationship. This section does not make evidence of mere general reputation admissible as proof of relationship.46
 The gathering of special means of knowledge is not confined only to the members of the family but has been given a wide connotation by the expression “otherwise”. Special means of knowledge must however be proved independent of the opinion expressed by conduct 47. The language of S.50 leaves no room for doubt that opinion expressed by conduct of a person who as a member of the family or otherwise, has a special
means of knowledge as to the relationship of one person to another about which the Court has toform an opinion is relevant irrespective of the fact whether the person is himself called as a witness or not 48.
However, the proviso to S.50 49 cannot however be applied to ordinary civil cases where the facts of marriage or of divorce are in dispute. The Act had adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof. Because, in civil cases mere preponderance of probability is sufficient. In criminal cases the guilt is to be proved beyond all reasonable doubt. From the proviso it appears that evidence which is considered sufficient for one purpose is not considered sufficient for another. In proceedings founded on charge of adultery, strict of the marriage is always necessary. 50
 In case the Court wants to convict under. S.498 of the Indian Penal Code the prosecution has to prove that the complainant and the woman, in respect of whom the charge was made, lived together as man and wife. It is necessary that the fact constituting a valid marriage should be proved in accordance with S.60 the Indian Evidence Act.51
In view of the provision to S.50 a number of authorities have laid down that for prosecution under. S.494, 497 and 498 of IPC marriage must be strictly proved as a fact and no presumption can be drawn by the Courts. As the opinions of certain persons are relevant in the same way the ground on which such an
opinion is formed also becomes relevant. This principle is envisaged in S. 51 of the Indian Evidence Act.52
 The mere opinions of the witnesses are entitled to little or no regard unless they are supported by good reasons, founded on facts, which warrant them the opinion of the jury. If the reasons are frivolous or inconclusive, the opinions of the witnesses are worth nothing 53. The opinion of an expert witness is admissible in evidence not only when it rests on the personal observation and inquiry but also when it is founded on the cases as proved by other witness at the trial.
Opinion as to the character:  In civil cases evidence of the character of any party to the suit, to prove the probability or improbability of any conduct imputed to him is irrelevant 54. The general exclusion of character evidence is based on grounds of public policy and fairness.  The general rule is that the evidence as to the character of a person is irrelevant in a civil case. The Evidence of character relates either to character of witness or to character of parties. Character of a witness affects his credit and is always material, as it helps the Court to come to the conclusion whether his evidence should be treated as trustworthy. Questions touching the character of a witness are allowed to be put to a witness who comes to give evidence in a case
55. This is not the same with criminal cases.56 However, good character is not a defence, for –one would then be convicted, as everyone starts with a good character. The defendant is, however, entitled to rely on the fact that he is of previous good character as making it less likely that he would have committed the offence. If there is any room for doubt, his good character may be thrown in the scales in his favor 57. S.54 envisages that previous bad character is not relevant except in reply.58
 Under S.55 the character affects the damages. 59 However, the opinion regarding the character would not come under expert opinion.
To sum up it is chiefly on question of science or trade (where there often is a difficulty, and occasionally, an impossibility, of obtaining more direct and positive evidence) that person of peculiar skill on the subject (sometimes called experts), are allowed to give their opinions in evidence as well as testify to facts. Thus the opinions of medical men are constantly admitted in matters related to time of death, age of the parties, cause of death, possibility of the weapons used, disease, injury, sanity and insanity of the parties so on and so forth. Now a day the DNA test is often used in fixing the paternity of the child in family law related cases such as maintenance and legitimacy of the child. It is in short, a general rule the opinion of a person who has special skill in that particular field shall be admissible in the Court of law. There may exceptions to this rule, in spite of it when there is dearth of direct evidence and in certain cases to corroborate the already existing evidence the expert opinion is sought.
? Dr. A. Krishna Kumari, Ph.D (Law):  Consulting Editor: ICFAI University, Hyderabad, A.P. India
1 http://symlaw.ac.in/doc/syed.pdf
2 Buckley v Rice Thomas (1554)http://www.ewi.org.uk
3 Inserted by the Indian Evidence (Amendment) Act, 1899. S.3 See Gazette of India 1898 for further details.
4 Inserted by the Indian Evidence (Amendment) Act, 1899. S.4
5 Gazette of India 1898 has an elaborate discussion  as to whether  finger impression include thumbimpressions at p.24
6 Indian Evidence Act, 1872 S.45
7 Punjab Singh vs. State: 1974 Kashmir Law Journal: P.404
8 Collector Jabalpur vs. Nawab Ahmed: AIR 1971 M.P. 32
9 Assistant Collector, Customs vs. Pratap Rao: 1972 Criminal Law Journal p. 1135
10 http://symlaw.ac.in/doc/syed.pdf
11 Harkchand vs. State: AIR 1954 M.B
12 Taylor: Evidence: p.1417
13 Vasudev Gir vs. State: AIR 1959 Pat.534
14 Law of Evidence: Woodroffe& Amir Ali: 14th Edition (1979) p.1301
15 When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact.
16 A person is said to be acquainted with the handwriting of another person when he has seen that person
write, or when he has received documents purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person, or when in the ordinary course of
business, documents purporting to be written by that person have been habitually submitted to him.
17  Devi Prasad vs. State: 1967 Cr.L.J. p. 64
18 S.67: The contents of documents may be proved either by primary or by secondary evidence.
19 If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand writing.
20 Rahim Khan vs. Khurshid Ahmed: AIR 1975 SC 290
21 Punjab National Bank Ltd. Vs. Mercantile Bank of India Ltd. 8 IC 93 (Bom)
22 http://en.wikipedia.org/wiki/Scientific_evidence
23 http://www.belnicklaw.com/article.jsp?practArea=19&articleIndex=4
24 AIR 1956 SC 415
25 http://www.rediff.com/news/2006/jan/04dna.htm
26. Abdul Razak Murtaza Dafadar vs. State of Maharashtra: AIR 1970 SC 283
27 Ramla vs. State: (1963) 1Cr.L.J 387
28 Chhat Ram Vs. State of Haryana: ILR (1975) 1 Punjab 327
29 Babu Magbul Shaik vs. State of Maharashtra: 1993 Cr.L.J. 2808 (Bom)
30 http://www.belnicklaw.com/article.jsp?practArea=19&articleIndex=4
31 http://en.wikipedia.org/wiki/Ballistics
32 Surat Sing vs. State: 1995 Cr.L.J. 3189
33 Kartik Harijan Vs. State of Orissa: 1995 CrL.J. 2019
34 Baldev Raj Miglani vs. Urmila: AIR 1979 SC 879
35 Mani Ram vs. State of Rajasthan: AIR 1993 SC 2453
36 Maula Bux vs. State of Rajasthan: (1983) 1SCC 379
37 Boddu Murali vs. State: 1993 Cr.L.J.  2077
38 SK Belal vs. State of Orissa: 1994 Cr.L.J.467 (Ori)
39 Ratan Lal & Dhiraj Lal: The Law of Evidence: 20th Ed: (Wadhwa and Company) P.960
40 When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of any general custom, right, the opinions, as to the existence of such custom or right, of person who would be likely to know of its existence if it existed, are relevant.
41 Facts relevant when right or custom is in question - Where the question is as to existence of any right or
custom, the following facts are relevant:(a) any transaction by which the right or custom in question was
created, claimed modified, recognized, asserted or denied, or which was inconsistent with its existence; (b)
Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.
42 Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or
who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of
delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -opinion as to public right or custom, or matters of general interest - When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
43When the Court has to form an opinion as to the usage's and tenants of any body of men or family, the
constitution and government of any religious or charitable foundation, or the meaning of words or terms used
in particular districts or by particular classes of people, the opinions of persons having special means of
knowledge thereon, are relevant facts.
44 When the Court has to form an opinion as to the relationship of one person to another, the opinion
expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact.
blood, marriage or adoption the person making the statement had special means of knowledge, and when the
statement was made before the question in dispute was raised.
46  Shankar vs. Vijay: AIR 1968 All58
47 Ulla Dei Vs. Malli Bewa: ILR (1967) Cut.430
48  Gosain vs. Dulhina AIR 1968 Pat.48
49 Such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (IV of
1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (XIV of 1860).
50 Per Wilson and TottenhamJJ: in their reference of the cases to the Full Bench in Queen vs. G.R. Smith, 4
W.R (Cr.Rule)31: referred by Field : Commentary on Law of Evidence: Vol.III: 12 th  Ed: (Delhi Law House) p.2679
51 Oral evidence must, in all cases, whatever, be direct; that is to say; If it refers to a fact which could be seen, it
must be the evidence of a witness who says he heard it; If it refers to a fact which could be heard, it must be
the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense
or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that
manner; If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of
the person who holds that opinion on those grounds  - Provided that the opinion of experts expressed in any
treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the
production of such treatise if the author is dead or cannot be found or has become incapable of giving
evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as
unreasonable. Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material thing for its
inspection.
52  Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also
relevant.
53  Supra 31 at p.2680
54 S.52. In civil cases character to prove conduct imputed irrelevant - In civil cases, the fact that the character of any person concerned is such as to render probable or improbably any conduct imputed to him, is irrelevant except in so far as such character appears from facts otherwise relevant.
55 Ratan Lal & Dhiraj Lal: The Law of Evidence: 20th Ed: (Wadhwa and Company) P.587
56 S.53 In criminal proceedings, the fact that the person accuses is of good character, is relevant.
57 Supra note 36 at p.589
58 S.54. Previous bad character not relevant except in reply - In criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence has been given that he has a character in which case it becomes relevant.
59 S.55. Character as affecting damages - In civil cases, the fact that the character of any person is such as to
affect the amount of damages which he ought to receive is relevant.

Police investigation

Police investigation
 June 2000

http://www.ksp.gov.in/home/policemanual/ch27.php Chapter 27

FIRST INFORMATION TO THE POLICE 1188. (1) Offences against law are classified broadly into two heads :  (a) Cognizable ; and  (b) non-cognizable.  Offences under the Indian Penal Code or special and other local laws in which Police Officers may arrest without warrant, are cognizable. Other offences are non-cognizable.  (2) In rural areas, the Complaint of a cognizable offence is generally made to the Dalapathi of the Village Defence Party, who records a statement from the complainant or informant, reads it over to him and obtains his signature, or in the case of an illiterate, his thumb impression, prepares a report and forthwith dispatches it along with the statement of the complainant to the Officer in-charge of the Police Station having jurisdiction over the place. Dalapathis of the Village Defence Party make similar reports of occurrences coming to their personal knowledge other than through complaints made to them.  (3) When a written report regarding the commission of a cognizable offence is received at the Station from the Dalapathy or any other Source, the name and address of the person presenting it will be recorded on it and as many exact copies of the report as may be needed will be made in the Fist Information Report form. In all cases the Officer-in-charge of the Police Station will himself sign each copy and will affix the Police Station seal on it. (4) A copy of the said First Information should be given forthwith, free of cost, to the informant. (5) Sometimes in rural parts and more often in towns, complaints of congnizable offences are made directly at the Police Stations. In such a case, the Officer-in-charge of the Station should reduce the complaint to writing, read it over to the complainant or informant and obtain his signature, or if he is an illiterate, his thumb impression. This should be done on the First Information Report form itself. (6) Any person who refuses without reasonable cause to sign the copies of the first information is liable to punishment under Section 180 of the Indian Penal Code. (7) The provisions of sections 182, 183 and 184 Cr.P.C. as regards the jurisdiction of the courts to inquire into criminal offences should be borne in mind while registering cases on the basis of the First Information received by the Police Officers. WHAT CONSTITUTES FIRST INFORMATION 1189. Information of the commission of a congnizable crime that shall first reach the police, whether oral or written, shall be treated as the First Information. It may be given by a person acquainted with the facts directly or on hearsay, but in either case it constitutes the First Information required by law, upon which the investigation under Section 157, Criminal Procedure Code, shall be taken up. When hearsay information of a crime is given the Station House Officer shall not wait to record as the first information the statement of the actual complainant or an eye-witness. 1190. A vague rumour should be distinguished from an oral report and should not be reduced to writing or signed by the informant but merely entered in the Station House Diary and should it, on subsequent information, prove well founded, such subsequent information shall constitute the First Information. If the rumour is in regard to the occurrence of a serious crime, the Station House Officer must embark upon an immediate enquiry to verify its authenticity and, if found true, obtain a complaint and register and investigate it. 1191. Police Officers shall not defer drawing up the First Information Report until they have tested the truth of the complaint. They shall not await the result of medical examination before recording the First Information when a complaint is made of grievous hurt or other cognizable crime. 1192. While recording the complaint, the Station House Officer has carefully to question the complainant and record a detailed and full account of the incident, lest the want of essential particulars in the complaint should affect the case adversely at a later stage. It is of utmost importance to secure all particulars regarding the occurrence in the first instance and to record them in detail. Care should also be taken to see if the complaint is trying to exaggerate an actual occurrence or trying to give the colour of a cognizable case to an incident of a non-cognizable nature.  1193. Complaints made by telegram or telephone should not be recorded in the First Information Report Until the information has been verified and either a statement has been recorded from the sender in writing or a confirmatory written and signed complaint has been received from him. This does not mean that the Officer-in-charge of a Police Station need take no action on a telegraphic or telephonic complaint received by him. On receipt of a report by telegram or telephone regarding the commission of serious cognizable crime, he should make a note of it in the Station House Diary and hasten to the spot to verify the information and, if it is found to be true, he should obtain a complaint in writing or record the statement of the informer and send it to the Police Station for registration and immediately embark upon its investigation. On his return to the Station House, he should also record the result of his enquiries in the Station House Diary. REGISTRY IN FIRST INFORMATION REPORT BOOK 1194. Information coming under any of the following headings received at a Police Station, shall be registered in the First Information Report book (Form 126), which is the book prescribed under Section 154, Criminal Procedure Code:  (1) cognizable cases including those referred to the Police by Magistrates for investigation or inquiry under Sections 156 (3) and 202 Criminal Procedure Code; (2) fires, missing of cattle and all other occurrences where there is reason to suspect the commission of a cognizable offence; (3) non-cognizable cases endorsed to the Police by Magistrates for investigation or inquiry under Sections 155 (2) and 202 Criminal Procedure Code; (4) cases under Sections 41, 102, 107 to 110 of the Code of Criminal Procedure, only one First Information Report being issued if more than one person is involved in a case; (5) reports made to Magistrates with a view to action being taken under Sections 144 and 145 of the Code of Criminal Procedure. (6) cases under Section 182 or 211 I.P.C. when it is proposed to prosecute the complainant for false complaint, although not investigated under Section 155 (2) of the Code of Criminal Procedure. Note:- Cases received on transfer from other Police Stations should be re-registered at the receiving Station. 1195. Every report of a cognizable offence should be registered in the First Information Report book, even if it appears to be untrue, exaggerated or of civil nature. 1196. If the Officer-in-charge of a Police Station receives an oral report of a cognizable offence during his tour, he should take down the report in writing and have it signed or marked by the person who made it. He should then send it, with an endorsement duly signed by him, to the Police Station, where it will be treated as a written report and registered in the First Information Report book. In the meantime, he will himself commence the investigation. 1197. Every effort must be made to secure the most precise description of the stolen property from the complainant at the time when the first information is recorded. If the complainant is unable to furnish a list of property when he gives the first information, he shall be required to supply the list in writing as soon as possible after the arrival of the investigating officer at the spot. 1198. A First Information Report once recorded, shall in no circumstances be withheld or cancelled by the Station House Officer. 1199. Cases entered in the First Information Report book will each be given a consecutive number, and this number will constitute the crime number for the purpose of subsequent references. 1200. As soon as the report has been entered in the First Information Report book, the substance of the report must be briefly recorded in the Station House Diary. 1201. The registration of a cognizable offence shall be made by the Police Inspector/Sub-Inspector, if he is present at the Police Station when a report is made. Once the report has been entered in the First Information Report, the investigation of the offence will be commenced at the scene of occurrence with the least possible delay, and the PI/Sub-Inspector will himself proceed to the spot. If there are reasons that render this impossible or unnecessary, he will depute a PSI/Head Constable to take up the investigation, and he will note in the First Information Report why he did not himself take up the investigation. In the absence of the PI/Sub-Inspector, the senior most officer present will record the first information and take up the investigation till relieved by the PI/Sub-Inspector or any other officer. 1202. The First Information Report shall invariably be written before the investigating officer proceeds to make an investigation. But, if a report of a serious crime is received by the Officer-in-charge of a Police Station, he must leave post-haste to the scene of offence directing the officer whom he places in-charge of the station or the station writer, as the case may be, to register the case. For example, if a Station House Officer is informed that a serious breach of the peace is occurring in his jurisdiction or that a drunkard is running amuck with a weapon after inflicting serious injuries on persons, it is the duty of the Station House Officer to proceed to the scene at once and prevent the commission of further offences. He should not delay proceeding to the scene for the sake of issuing a First Information Report, which could be left to one of his subordinates. 1203. If the first informant appears at an outpost with or without a report, a First Information Report should not be issued by the Head Constable or Constable in-charge as he is not a Station House Officer as defined in Section 2 (o) of the Code of Criminal Procedure. He will enter the substance of the report in the Outpost Diary, send the first informant with a note in which he should record the date and the time at which the first informant appeared at the Outpost and the date and time at which he left for the Station, where the First Information Report will be issued. He will then proceed to the scene of occurrence and will take steps to arrest the accused and recover stolen property, if any, pending the arrival of the Station House Officer to conduct the investigation. REGISTRY OF CASES REPORTED AT POLICE STATIONS OTHER THAN THE JURISDICTION OF THE POLICE STATION 1204. When an offence committed within the railway police jurisdiction is reported to a local district Police Station or vice-versa, the Station which receives the report shall forthwith inform the Police Station having jurisdiction by telephone, wireless or telegram, which shall be followed up by the First Information Report transferring the case. The police receiving the information first should take up the investigation and continue it till the arrival of the police having jurisdiction. 1205. If a crime committed in the jurisdiction of another Police Station within the State is reported to the Station House Officer of a Police Station, a First Information Report should be issued and its substance entered in the Station House Diary. 1206. If the place of occurrence is near and is easily accessible from the Station House, the Station House Officer will at once proceed to the spot, take up investigation and continue it till relieved by the police having jurisdiction. Simultaneously, action will be taken to send immediate intimation to the police having jurisdiction over the place. When the investigation is taken over by the latter, the First Information Report should be transferred. 1207. If the place of occurrence is far off, immediate intimation should be sent to the police having jurisdiction over the place by the quickest possible means and the First Information Report transferred to them simultaneously. If any of the persons, who are reasonably believed to have taken part in the offence, are found in the limits of the station where the offence is reported and if the offence alleged against them is of a serious nature and there is reasonable apprehension that they will abscond unless immediately taken into custody, they should be arrested and produced before the court having jurisdiction, intimation of their arrest being promptly sent to the Police Station within the jurisdiction of which the offence occurred. 1208. If a report relates to a cognizable offence that was committed outside the State, it will be entered in the Station House Diary and a certified copy of the entry will be given to the person who made the report and he will be referred to the Station House Officer within whose jurisdiction the offence took place. If any of the persons who are reasonably believed to have taken part in the commission of the offence are found in our State territory, and if the offence alleged against them is of a serious nature and there is reasonable apprehension that they will abscond unless immediately taken into custody, they will be arrested and produced before the court having jurisdiction, intimation of their arrest being promptly sent to the Police Station within the jurisdiction of which the offence occurred. REGISTRATION OF CASES WHEN STATION LIMITS OF OCCURRENCE ARE DOUBTFUL 1209. The police to whom a cognizable offence is first reported shall register the case and take up the investigation, where the offence has been committed close to a boundary between stations and it is at first doubtful in which station limits it occurred. The station which should retain the crime should be subsequently settled. It is of little importance whether a crime committed close to a boundary line is registered in this or that station. What is necessary is that the police who first hear of it should take up the case and endeavor to detect it. NON-COGNIZABLE CASES 1210. Information received in a Police Station of facts which constitute a non-cognizable case or any steps taken by the police on their own volition in a non-cognizable case will be entered in the Station House Diary. 1211. (1) When a Police Officer finds it necessary to lay information before a Magistrate in a non-cognizable case, he may, under Clause (b) of Sub-Section (1) of Section 190 of the Code of Criminal Procedure, make a report to the Magistrate in writing of the facts which constitute such offence. (2) If there are persistent complaints against a particular individual, which legally fall under the category of a non-cognizable offence, the following action may be taken :- (a) Obtain orders or the competent court to register the N.C. case and investigate and/or (b) initiate action U/s 110 Cr.P.C. if there is persistent commission of non-cognizable offence by a given individual resulting in breach of peace. SALIENT POINTS TO BE REMEMBERED 1212. The following are the salient points to be borne in mind while registering an offence:- (1) Write the First Information Report immediately with all available details, and enter the fact at the same time in the Station House Diary, mentioning therein the name of the complainant or informant (with father’s name, age, occupation and residence), the time of reporting at the Police Station and brief particulars of the report, including the crime number and section of law and action taken. (2) Record all available facts of the case in unambiguous terms and make sure that no important point is omitted. (3) Use copying pencil for writing the First Information Report and make copies by carbon process. (4) Do not make corrections, erasures, scorings or over-writings. If a correction is necessary, strike out the word or words, leaving them still legible, and initial.  (5) When the first informant presents his written report at the Police Station, read it and explain it to him. If he admits its correctness make on it an endorsement to that effect. Note on it the date and time of its receipt. (6) If the written report reveals the commission of or reasonable grounds to suspect the commission of, a cognizable offence, it is not necessary to record any further statement. Proceed to register the case in the prescribed form, making relevant entries in the Station House Diary. (7) If the written report is lacking in details of the articles stolen or their description including their identification marks, the names of persons who can identify them, etc., elicit them and record them at the foot of the report. The record made should be read and explained to the maker and attested by him. (8) If the written reports does not contain the names and addresses of the accused, or some of the accused mentioned in the report have the same name, or the accused or some of them are not named but can be identified, their complete addresses to distinguish one from the other, and the descriptive marks of such of the accused as are to be identified, should be elicited and recorded. (9) If the written report does not contain a list of the articles stolen and the first informant states that a list is under preparation and would be furnished, make a record to that effect at the foot of the report and obtain his attestation to it. (10) If the written report is wanting in any other information but for which, the report cannot be said to contain all the information falling within the purview of Section 154 of the Code of Criminal Procedure, question the first informant and if he is able to furnish it, record it at the foot of the report and obtain his attestation. (11) If the first informant does not appear with his written report but makes an oral statement, reduce his oral statement to writing in the space provided in the First Information Report form. If one form is found insufficient, use another form. (12) Record the First Information in the actual words of the informant, as the record should not be your impression of what he meant to say. Employ plain and simple language, as nearly as possible, in the informant’s words. (13) Avoid technical or legal expressions of high-flown language. (14) When, after the First Information Report, a list or a further list of stolen property is furnished to you or obtained by you, ensure that it is signed by the persons concerned and record on it the date, time and place of its receipt. (15) Do not keep the list referred to above in the case diary file. Retain its copy and send the original to the court for being attached to the relevant First Information Report. (16) Whenever it is found that having regard to the time and date of occurrence, the distance from the place of occurrence to the Police Station and other relevant circumstances, the first informant has delayed lodging the First Information, elicit from him a full and detailed account of the circumstances which contributed to such delay, while reducing to writing, his oral statement. (17) If a first informant appears before an officer superior in rank to an Officer-in-charge of a Police Station, the former should reduce to writing his statement or he should see that the informant is produced before the Officer-in-charge of the Police Station, who should then record his statement. (18) When an accused appears at a Police Station and lodges a First Information Report, it should be read and explained to him and if he admits its correctness, an endorsement to that effect should be recorded. If he appears without a written report, his oral statement should be reduced to writing. In either case, if a cognizable offence is disclosed or there are reasonable grounds to suspect the commission of a cognizable offence, a case should be registered. (19) When a cognizable offence is committed in the presence of an Officer-in-charge of a Police Station, he is not bound to take down in writing any information relating to the commission of the offence. Since he has the information himself, he can register the case suo-moto. (20) In cases registered suo-moto, satisfy yourself that the First Information Report contains a full and correct record of all the facts and circumstances relating to the offence and the offenders, including the names of witnesses, if any. (21) When the First Information relates to theft, do not fail to ask the complainant to furnish a list of articles stolen, their value and any particulars as to weight, make, design or other distinguishing marks which may assist identification, if they have not already been furnished. While eliciting the prices of articles stolen, take care that their prices are fixed having regard to the market rates prevailing at the material time and not with reference to the prices at which they were originally purchased. (22) If the informant knows or has seen the person by whom an offence reported was committed but his name and address are not known to him, do not fail to elicit from him, a description of the latter’s appearance, which should be recorded along with the rest of the information. (23) If the complainant is unable to give a list of property stolen at the outset (may be because he is not the victim of the theft or the person in the know of things or articles is away at the time) or its weight, make, design or distinguishing marks, do not fail to obtain it from the person concerned. There should be no delay whatsoever. (24) There should be no time-lag between the receipt of information of the commission of a cognizable offence and the recording of it. (25) Whenever a report clearly discloses a cognizable offence, do not embark upon a preliminary enquiry which is illegal; but register the case at once. (26) The First Information Report is the first information of an occurrence or transaction in point of time which reaches the authority competent to investigate or order an investigation. Obviously there cannot be more than one First Information Report in one case, however many the victims of the offence may be. If three persons are murdered in the course of an occurrence, preparation of three First Information Reports, one for the murder of each person, is irregular. (27) Note on the original written report received from the Village Defence Party Dalapthi, or any other source, the date and hour of its receipt through whom it was received. (28) Note on all the copies of the First Information Report, their distribution, as for example, (i) Magistrate – Designation and place. (ii) Superintendent of Police. (iii) Sub- Divisional Police Officer. (iv) Station file. (29) Attach the original written complaint or the Village Defence Party Dalapathi's report to the original pencil copy of the First Information Report to be sent to the magistrate. (30) Despatch the copies of the First Information Repot to the Magistrate and other offices without any delay and enter the date and hour of despatch in the concerned records (31) Satisfy yourself that the copies of the First Information Report are delivered promptly under proper acknowledgement. (32) In heinous cases, send First Information Reports through express messengers and in cases of specially heinous nature, by police wireless, or Fax. (33) Fill in the following columns of the First Information Report correctly : (i) Date and hour of occurrence (if the correct time is not known, give the approximate time and, if the exact date of occurrence is not known, place it between two dates). (ii) Date and hour when reported. (iii) Place of occurrence and distance and direction from Police Station. (iv) Date of despatch from the Police Station (v) Name and residence of informant or complaint. (The complainant’s or informant’s full name with aliases, if any, address and father’s name). (vi) Name and residence of the accused. (The full name of each of the accused with aliases, if any, address and father’s name.) (vii) Brief description of the offence, with section and details of property carried off, if any. Note the section of law and modus operandi classification, and the details and value of stolen property. If the list of stolen property is lengthy, it must be made on a separate sheet of paper and attached to the First Information Report and the fact mentioned in this column. In such a case, the list should bear the signatures of both the complainant and the Station House Officer. (viii) Steps taken in regard to the case with explanation for any delay in recording information. (ix) Signature and designation should be on all the pages. FIRST INFORMATION REPORT-TO WHOM SENT 1213. (1) One copy of the First Information Report will be retained in the Station and another will be forwarded without delay to the Magistrate having jurisdiction. Two copies with Station House Diary will be sent to the Circle Inspector, who will submit the same to the Sub-Divisional Police Officer. In the case of the Police Inspector working as SHO he will directly submit it to the SDPO. The Sub-Divisional Police Officer will retain one copy and the Station House Diary and send the other copy of the First Information Report to the superintendent. When the Magistrate having jurisdiction is not the local Magistrate, a fourth copy will be sent to the latter also. When the Circle Inspector or his superior registers and or takes up investigation, an additional copy should be made for his case diary file. The copies will be made by carbon process. To the copy sent to the Magistrate, the original report of the source with its enclosures, if any, in original, or the original written complaint made by the complainant will be attached. Copies of these records will be made out and attached to the other copies. 1214. In cases coming under Clause (b) of the proviso to Section 157 of the Code of Criminal Procedure, the copy of the First Information Report should be sent to the Magistrate, through the Circle Inspector. In case of Police Inspector as SHO, he will himself send the report. 1215. In cases referred under Sections 155 (2), 156 (3) and 202, Criminal Procedure Code, a copy of the First Information Report need not be sent to the Magistrate as the referred complaint itself constitutes First Information. Similarly in cases registered under Section 182 or 211, Indian Penal Code, with the orders of the Magistrate, a copy of the First Information Report need not be sent to the Magistrate. EXPRESS REPORTS 1216. (1) The crimes listed below are designated as heinous crimes. In such crimes a copy of the first Information Report shall be sent direct to the Superintendent, to the Sub-Divisional Officer, to the Circle Inspector, to the local Magistrate and also to the Magistrate having jurisdiction in case he is not the local Magistrate. In specially heinous crimes, a copy of the First Information Report shall also be sent to the District Magistrate. (a) Dacoity ; (b) Robbery; (c) Murder; (d) Culpable homicide not amounting to murder; (e) Rape ; (f) Arson causing death, injury, damage to dwelling houses & loss of property over Rs.5000/-. (g) House breaking and theft over Rs. 25,000 /- (h) Any disturbance, riot or affray of a specially grave nature : (i) Theft over Rs.50,000 ; (j) Case of counterfeit coins and currency notes; (k) Case of possession or manufacture or use of bombs or explosives whether political or not; (l) Assault on Police Officers; (m) Offence under Sections 400 and 401 of the Indian Penal Code ; (n) Conspiracy case; (o) Serious road accident; (p) Professional poisoning; (q) Kidnapping for ransom - 364-A IPC; (r) Offence under 304 (b) IPC; (s) Any case of specially heinous nature. (2) These reports are termed “Express Reports” and should be sent by hand as quickly as possible. 1217. (1) An immediate report of a case falling under any of the following heads should be sent to the Circle Inspector/ the Sub-Divisional Police Officer and the superintendent by the quickest means possible, as superior officers have to send immediate information to the Director General, the Range Inspector-General/ Deputy Inspector-General. The District Magistrate may be kept informed in cases falling under (g) (h) (I) (j) (l) (p) (q) (r ) (s) (t) (u) & (v). (a) Dacoity; (b) Highway Robbery; (c) Murder; (d) Culpable homicide not amounting to murder; (e) House breaking and theft of serious nature. (f) Communal rioting; (g) Disturbance, riot or affray of a specially grave nature (Note: any rioting involving death of any person or persons or injuries to a number of persons will come under this head) ; (h) Disturbance involving the use of fire-arms; (i) Case in which fire is opened by a government servant; (j) Case of manufacture of counterfeit currency notes and coins; (k) Case of possession or manufacture or use of bombs or explosives even though non-political in character; (l) Drug poisoning case; (m) Abduction or kidnapping of women and children in a systematised manner and rape ; (n) Assault on the police, except where it is very trivial in nature; (o) Case of death or grievous injury alleged to have been caused by a Police Officer whether in his public or private capacity or to have occurred to any person (including suicide) while in police custody or alleged police torture; (p) Fast, hartal, satyagraha or strike of any kind and agrarian trouble; (q) Serious fire accident involving loss of properties or involving loss of human life or both (r) Case of a specially heinous nature or public importance: (s) Serious accident or natural calamity including floods and earth quakes in which human lives or serious damage of property are involved ; and (t) Railway accident except where it is trivial ; (u) Serious Road accidents. (2) In the case of Bangalore City, such reports should be first made on telephone followed by a written report. 1218. All robberies of railway passengers should be regarded as "Highway robberies". 1219. Express reports shall invariably be sent by the local police to the District Magistrate in respect of riots and disturbances which involve a serious breach of the public peace. 1220. In every case in which the police use fire-arms in suppressing a riot or in self-defence, an express report or wireless or telegram, whichever is the quickest, shall be sent to the District Magistrate. In this report the number of persons killed or injured, if any, shall be stated. 1221. As regards reports of accidents in connection with explosives or inflammable oils, the procedure laid down in Order 950 should be followed. 1222. In any of the cases referred to in Orders 1216 and 1217, the Director-General may, in his discretion, send reports to Government. USE OF THE FIRST INFORMATION REPORT 1223. The First Information Report is a very important document. It is the earliest record made of an alleged offence before there is time for its particulars to be forgotten or embellished. It can be used to corroborate or impeach the testimony of the person lodging it under Sections 145, 157 and 158 of the Indian Evidence Act. It can also be used under Clause (1) of Section 32 and illustrations (j) and (k) under Section 8 of the Indian Evidence Act. The necessity of drawing up this document with the utmost care and accuracy and with all available details cannot, therefore, be overemphasised. CRIME REGISTER 1224. Crime Register in form No.20 will be maintained in each Police Station wherein entries will be made as per instructions given in the form. This is a continuous record for all First Information Reports registered and will be written up in the order of register of the First Information Report. This will be in two volumes, one for professional property offences and the other for other cognizable offences. Attention is drawn to S.O. 646.