A Battle Between Bail and Silence — Comparing Section 45 PMLA with US Pre-Trial Prosecutorial Discovery

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(This is a guest post)

The present post analyses the constitutionality of restrictive bail conditions in the Indian anti money laundering law from the perspective of the right against self-incrimination. Section 45 of the Prevention of Money Laundering Act, 2002 (“PMLA”) imposes twin conditions that an accused must meet to secure bail: (i) satisfy a court that there are “reasonable grounds to believe” that the accused is “not guilty of the offence”, and (ii) that the accused is unlikely to commit any further offences while on bail. By way of background, the Indian Supreme Court dismissed a challenge to Section 45, PMLA in Vijay Madanlal Choudhary v. Union of India. Petitions seeking a review of the judgment are pending). However, neither the original judgment nor grounds taken in the review petition sufficiently discuss the interplay between Section 45, PMLA, and the right against self-incrimination.

This post employs a comparative analysis of case law pertaining to pre-trial prosecutorial discovery rules in criminal cases in the United States to explore the intersection between Section 45, PMLA, and the right against self-incrimination.

Hypothetical Scenario: The Conflict Between Self-Incrimination and Disclosure of Material During a Bail Hearing

Imagine an accused is facing charges of money laundering, with one of the key allegations being that they received the proceeds of a crime from person X at location Y on a specific date. Aware that they must provide prima facie evidence of innocence to secure bail, the accused submits an affidavit to the court asserting that their mobile phone’s GPS data places them far from location Y at the relevant time. In response to this assertion, the prosecution requests the accused’s phone password to verify the accuracy of the GPS data. Apprehensive that failure to comply with this request could result in their bail application being denied, the accused agrees to provide the password to unlock the phone voluntarily.

Upon inspection, the prosecution confirms accuracy of the GPS data, but in the process, examines other files and data on the phone, discovering additional incriminating material that they were not aware of. The prosecution subsequently submits a counter-affidavit, which includes this newly discovered material. In response, the accused argues that this material should not be taken into consideration, asserting that it was obtained through their compelled disclosure and is therefore subject to the protections afforded by the right against self-incrimination. The prosecution argues that the password was provided voluntarily without any court order, and it does not amount to compelled disclosure.

I’ll build on this example and examine the constitutionality of pre-trial disclosures made by an accused during the bail stage.

US Case Law

The Indian guarantee against compelled self-incrimination avowedly borrows from the self-incrimination clause of the Fifth Amendment to the U.S. Constitution. Historically, the values of the American accusatorial system required the state to shoulder the entire burden in a criminal prosecution without any compelled help from the accused and the accused is not required to disclose their defence until the prosecution has presented its case. However, this privilege has been eroded through legislative provisions that require the accused to disclose certain portions of their evidence before trial.
In Williams v. Florida (“Williams”), the rule under challenge required the accused to disclose a list of alibi witnesses before trial. The accused was convicted and appealed against conviction on the ground that compelling him to reveal the name of his alibi witnesses violated his right against self-incrimination. However, the challenge was dismissed by the U.S. Supreme Court. To reach its conclusion, the Court first recognised that the privilege against self-incrimination consists of three elements: (i) compelled disclosure (ii) related to testimonial matter (iii) incriminating nature of the communication. The Court held that two elements, i.e., testimonial communication and ‘tendency to incriminate were present in the rule requiring disclosure of alibi witnesses. However, it concluded that the relevant rule did not compel the accused to disclose alibi witnesses. It reasoned that the defence had intended to present the alibi witnesses at trial regardless, and by providing the prosecution with this information prior to trial, the defence was simply ‘accelerating the timing of the disclosure’, thereby facilitating a more efficient trial process. It was held that even during the trial, the accused would still face the same choice: (i) to remain silent, or (ii) to offer a defence that could potentially lead to self-incrimination through cross-examination.

‘Acceleration of timing’ is an established principle today based on which pre-trial discovery by prosecution has been expanded vastly over the years. It is widely believed that prosecutorial discovery enhances the state’s ability to rebut the accused’s case and effectively cross-examine their witnesses. In light of the analysis of Williams, the issue arises as to whether the prosecution is entitled to seek any and all forms of disclosure under the guise of the ‘acceleration of timing’ principle. The subsequent cases suggest a different interpretation.

There are two ways in which pre-trial discovery from an accused can assist the prosecution. It can either (i) help prosecution in investigating the grounds of defence taken by the accused and consequently, help in preparing rebuttal evidence to the defence of the accused; and (ii) provide leads to the prosecution that can help in building a case-in-chief against the accused.

Various commentators have argued that Williams was only concerned with and envisaged the preparation of rebuttal evidence using pre-trial discovery by an accused. The Court’s reasoning supports this argument. Firstly, the court equated the situation of pre-trial discovery with the stage of defence evidence at a trial, where the accused must reveal the identity of their witnesses and submit them to cross-examination, which may furnish the State with leads to incriminating rebuttal evidence. Therefore, the court only intended to confine itself to rebuttal evidence while testing constitutionality of the discovery rule requiring disclosure of alibi defence. 

In this regard, it is further pertinent to recall that in Williams, the Court held that the alibi discovery rule did not amount to a compelled disclosure since the choice between (i) remaining silent and (ii) presenting a defence that might incriminate the accused through cross-examination or provide leads to the state to impeach their witness is ‘inherent in the trial process’. The natural corollary of this reasoning is that choices compelling an accused to make choices not inherent in a trial process amount to a compelled disclosure and, hence, violate the right against self-incrimination. In a case where the accused’s disclosure can be used to build the prosecution’s case-in-chief, the accused’s decision whether or not to disclose requires them to choose between defending by affirmative evidence or defending by failure of government proof. 

In his article on prosecutorial discovery, Prof. Eric Blumenson argues that such a choice is not inherent in the trial process, since at a trial, the accused leads evidence only after the government proves a prima facie case, and hence, the adversarial criminal process protects an accused from aiding the prosecution in building its case in chief. Therefore, if the prosecutorial discovery rule, as approved in Williams, is used by the prosecution to build its case in chief, the said discovery would not pass the ‘acceleration of timing’ principle in Williams and, accordingly, would violate the right against self-incrimination.

Secondly, the fact that the majority opinion’s focus was only on rebuttal evidence can be gauged from the examples it cites in the opinion. The Court gave an example to the effect that if the disclosure rule was not in place, the way alibi testimony would have played out is that the prosecutor would have asked for a continuance / adjournment after the alibi witness’s examination-in-chief and would have found rebuttal testimony to impeach the alibi witness before cross-examining them. The Court concluded that since the said sequence of events would not violate the accused’s right against self-incrimination, neither would the pre-trial discovery rule at issue in Williams. Therefore, the said example makes it evident that the scope of Williams was limited to rebuttal evidence and the judgment did not envisage use of prosecutorial discovery as a tool to build a case-in-chief.

The Scarcity of Jurisprudence on the Use of Pre-Trial Discovery from the Accused to Construct the Prosecution’s Case-in-Chief

There appears to be a dearth of case law addressing whether pre-trial discovery from the accused can be used by prosecution to build its case-in-chief. Before Williams, the California Supreme Court in Prudhomme v. Superior Ct (“Prudhomme”) delineated two important points concerning the right against self-incrimination: (i) the right against self-incrimination is compromised when the disclosure could potentially ease the prosecution’s burden of proving its case in chief and the accused’s disclosure cannot be used for the said purpose; (ii) any disclosure that could serve as a “link in a chain” of evidence establishing the accused’s guilt is prohibited under the principle of right against self-incrimination.

Another Californian case took the same view as Prudhomme. In re Misener (“Misener”), a broader interpretation than Prudhomme was taken when the majority held that Fifth Amendment privilege does not end upon the establishment of a prima facie case by the prosecution and that it barred any prosecutorial discovery that prevented the prosecution from carrying the entire burden of proving the accused guilty beyond a reasonable doubt, whether compelled disclosure might serve to make the prosecution’s case or to unmake the accused’s.

Therefore, in Prudhomme and Misener, the California Supreme Court explicitly recognised that any pre-trial disclosure that lessens the burden of the prosecution in proving its case-in-chief is unconstitutional. However, none of these cases dealt with a scenario in which the prosecution used pre-trial disclosure to build its case-in-chief.

Both Prudhomme and Misener were subsequently overruled in Izazaga v. Superior Court. Here, the California Supreme Court sustained a broad reciprocal disclosure requirement, rejecting the Prudhomme analysis. The California Supreme Court held that under the rationale of Williams, pre-trial discovery does not constitute compelled self-incrimination. Therefore, Prudhomme and Misener were overruled based on the reasoning in Williams, which was itself confined to envisioning pre-trial discovery for the purpose of collecting rebuttal evidence, rather than for building the prosecution’s case-in-chief.
It is pertinent to note that the issue of whether the prosecution can use pre-trial discovery to build its case-in-chief was not answered and has remained unanswered. There is no denying that prosecutorial pre-trial discovery over the years has become broader. For example, trial court rulings, based on the ‘acceleration of timing of disclosure’ laid down in Williams, have accepted a requirement of advance notification of defences, of expert witnesses, and of all other witnesses. Nevertheless, it can be fairly argued that these pre-trial disclosures should serve solely to counter defence witnesses and cannot be utilised by the prosecution to establish its case-in-chief. 

An example of this principle can be found in a trial court judgment in State v. McClaren in which while allowing pre-trial discovery, the court held that “any concerns defendant has concerning the disclosure [itself] potentially being used by the prosecutor in the case-in-chief could be addressed by an in camera review by the circuit court.” Further, even in Izazaga, which overruled Prudhomme and Misener, the concurring opinion by Justice Kennard mentions that there is a limitation on the manner in which the prosecution may use the discovery, and that it would be “impermissible for the prosecution to use, as part of its case-in-chief, evidence gained through discovery of statements of potential defense witnesses.” Therefore, while courts have been liberal in allowing prosecutorial pre-trial discovery based on Williams‘ acceleration principle, they are cognizant of the possibility of violation of the Fifth Amendment Principle if the said discovery is used for building prosecution’s case-in-chief.

Applying U.S. Pre-Trial Discovery Principles to the Hypothetical Scenario in Bail Proceedings under Section 45, PMLA

The principles discussed in the preceding section regarding pre-trial prosecutorial discovery should be applied in bail proceedings under PMLA. The justification for this is evident: Section 45, PMLA forces the accused to reveal their defence at a pre-trial stage. Consequently, bail proceedings under PMLA mirror the function of pre-trial prosecutorial discovery, insofar as they afford the state early access to key aspects of the accused’s defence before the commencement of trial.

Accordingly, applying these principles in the Indian context, the argument remains that if the prosecution uses the information disclosed by the accused to build the ‘foundational facts’ in its counter-affidavit (or the chargesheet later), the same would violate Article 20 (3) of the Constitution. Currently, the prosecution is not restricted from doing this, and in practice, the prosecution routinely files supplementary reports / complaints based on arguments made by the accused at the bail and charge stage to plug loopholes in its case-in-chief. Accordingly, even as per a broad interpretation of discovery rules under U.S. jurisprudence, the current use of Section 45, PMLA is violative of Article 20 (3) of the Constitution.

In light of the discussion of jurisprudence surrounding pre-trial prosecutorial discovery in the U.S., it can be concluded that Section 45, PMLA directly impacts the right against self-incrimination. The compelled disclosure of the accused’s defence at this stage undermines the privilege against self-incrimination. The argument that such disclosure is voluntary overlooks the coercive nature of the choice between liberty and silence. Courts must adopt a restrictive interpretation of Section 45, PMLA to prevent its misuse by the prosecution as a tool to build its case-in-chief through the accused’s pre-trial disclosures at the bail stage. This approach ensures that bail proceedings do not become a prosecution strategy session.



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