Forensic evidence in proving crimes : exploring the shari`ah tests of admissibility

Abstract

Forensic evidence is an evolving science in the field of crimes’ investigation and prosecution. Admission of these forensic evidences requires valid science. In order to determine the validity of science, Common law and Western legal system, particularly USA Supreme Courts have developed a set of tests or criteria within their general framework of Federal Rules of evidence. They are: whether the science has been tested; whether the science has been published in peer-reviewed journals; the error rate of the science; and whether the science has been generally accepted in the scientific community. The position in Islamic law is still unsettled. This study attempts to discuss and examine whether Shariah courts can adopt these common law tests or not. This study used two methods of data collection: library research and opinion survey among the forensic staff of Hospital Kula Lumpur and Shariah experts. This study has reached to a number of findings. The most important among them are: this research proves that common law criteria for forensic evidence are acceptable in admitting forensic evidences in Islamic law as they are justified either by Shariah texts or other standards of evidence in Islamic law; in determining the reliability of science, common law is silent whether the data has been properly collected from the crime scene and preserved; and whether the conclusion given by the expert is correct. Additionally, this study finds that for qualifications of an expert, common law requires knowledge, experiences and training but does not require justness and number of the experts. Accordingly, this study recommends that for proper application of forensic evidence, Shariah courts, in addition to common law tests of admissibility, should consider whether the data has been collected and preserved properly; and whether the conclusion given by the expert is correct. For the qualifications of an expert, in addition to knowledge, experiences and training, Shariah courts should consider adalah (justness) and numbers of the experts. Furthermore, this research suggests that Shariah courts should give significance to forensic evidence in the administration of justice; Shariah scholars should further study forensic evidence in the light of Islamic law; the Shariah departments in the Universities should also teach their students forensic science in the light of Islamic law; and Malaysian courts should follow these tests of admissibility as they are found to be useful and significant.