How to utilize the Rashomon Effect as part of a defence strategy in a criminal trial

Truth is a Song

A notable epithet by the writer Mark Twain reads “Truth is stranger than fiction, but it is because fiction is obliged to stick to possibilities; truth isn’t.” This is generally said to explain situations when truth seems implausible, based on the facts and circumstances.

However, this has little use in criminal trials, as is clear from the judgment in Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, where the finding of the High Court that the secret behind the crease-free, unsoiled and unstained letter was in the divine philosophy of “truth is stranger than fiction” was rejected.

The nature and role of truth in the justice system is beautifully described by Justice VR Krishna Iyer in Jasraj Inder Singh v. Hemraj Multanchand:

“7. … Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations.”

Witnesses play an important part in a criminal trial

The process of finding the truth requires examination of witnesses, and the trial court is required to evaluate the weight of the testimony in the light of the available material/other corroborative evidence.

Here, the role of the defence lawyer becomes of utmost importance, as it is not his role to prove beyond reasonable doubt that his client has not committed the offence in question.

It is essential to understand that people have a tendency to exaggerate and fictionalize, and thus, it is the duty of the defence lawyer to bring out contradictions that go to the heart of the prosecution’s case and prove that reasonable doubt exists, in order to have his client acquitted.

Ref: Sharad Birdhichand Sarda v. State of Maharashtra:

“ 115. The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. These circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

A good example of the same is seen in Adambhai Suleimanbhai Ajmeri:

“208. The confessional statements of the accused persons and the accomplices do not complement each other to form a chain of events leading to the offence. Rather, the depositions of the prosecution witnesses were contradictory and disrupt the chain of events and turn it into a confusing story with many discrepancies, defeating the roles of each of the accused persons which have been allegedly performed by them. ….”

The Rashomon Effect

To effectively bring out contradictions in the prosecution’s case, a defence lawyer can take advantage of the ‘Rashomon Effect’ while preparing for cross-examination.

Let’s first explain what the ‘Rashomon Effect’ is. It is a phenomenon when the same event is interpreted differently by different people. It owes its origin to the 1950 Japanese film Rashomon directed by Akira Kurosawa. The film involved a story of conflicting evidence of four witnesses viz. the murder of a Samurai. The truth was not known till the very end, showing that humans cannot be trusted with the truth.

The theme of unreliability of witnesses was well received and even inspired later movies. Vantage Point involved the telling of attempted assassination of President of the United States of America from several perspectives, ultimately showing several versions that collectively build the understanding of the situation.

Courage Under Fire revolved around investigation of several officers to determine whether a female officer is worthy to receive a Medal of Honour.

Gone Girl, also inspired by this Rashomon Effect, involves the husband and wife telling their versions, leaving the viewers to figure out the reason why the wife went missing.

Ittefaq involves the investigation of a double murder case by interrogation of two contradictory witnesses.

Talwar, dealing with the investigation of a double murder, depicts contradictory perspectives of the same. It was loosely based on an actual criminal trial.

Role of Defence Lawyer

To show that the prosecution was unable to prove the guilt of the accused, the defence lawyer has the weapon of cross-examination to bring out contradictions in the prosecution version of a single event.

What a defence lawyer can take from the ‘Rashomon Effect’ is that there is a dark side to human nature, and that different witnesses may give different accounts, thereby enabling him to prove that the entire prosecution story is liable to be rejected.

In Balaka Singh v. State of Punjab , it was held:

“8. … Where it is not feasible to separate truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and background against which they are made, the Court cannot make an attempt to separate truth from falsehood.”

How to bring the ‘Rashomon Effect’ in your matter

To bring in the ‘Rashomon Effect’, the defence lawyer should, first of all, group all witnesses of a single event together. For example, in heinous crimes such as rape, murder, etc., the alleged eye witnesses should be grouped together. Similarly, in white-collar crimes, witnesses claiming to have participated in a particular meeting, or involved in processing of a particular file can be grouped together.

After grouping the witnesses, a chart comparing the allegations event-wise should be prepared, to identify inconsistencies in the prosecution story. A pattern can be as under:

Thereafter, the defence lawyer is well advised to move an application under the proviso to Section 242(3) CrPC (warrant cases) or u/s 231(2) CrPC (session cases) seeking to have examination-in-chief of all said witnesses recorded first and then to be offered for cross-examination.

Section 231(2) reads as under:

"231. Evidence for prosecution.—(1) …

(2) The Judge may, in his discretion, permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."

Section 242 (3) proviso Cr.P.C. reads as under:

“242. Evidence for prosecution.—(1) … (2) …

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.”

The guidelines for considering such an application are provided in State of Kerala v. Rasheed :

“11. … The following factors must be kept in consideration:

• Possibility of undue influence on witness(es);

• Possibility of threats to witness(es);

• Possibility that non deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;

• Possibility of loss of memory of the witness(es) whose examination-in-chief has been completed;

• Occurrence of delay in trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) of the Code of Criminal Procedure.”

By this, the rights of the accused are protected, as the witnesses would , to the best extent possible, be beyond the scope of tutoring and would also not be able to "tailor their testimony to circumvent the defence strategy".

Apprehension of delay in trial can be removed by praying for the cross-examination to be conducted in an expeditious manner.

This also helps the defence lawyer better identify the contradictions and inconsistencies in prosecution versions, by having the examination-in-chief instead of statement under Section 161 CrPC with him.

Notable example of use of the ‘Rashomon Effect’

In the 2G Spectrum Case (in which the authors had represented various accused persons), the prosecution inter alia alleged that on January 10, 2008, the PS to the Minister, in presence of several officers including four directors, conveyed directions to the star prosecution witness (who was finally disbelieved by the trial court) in his room to distribute LOIs on that very day. The defence disputed the same.

To disprove the allegations, various witnesses of aforesaid event were cross-examined and the defence was successful in bringing out a contradictory version to the said event.

Surprisingly, all the four directors claimed that upon their entry, the other three were already present, meaning none arrived first, second or third. There evidence is as under:

Witness 1:

“Remaining two directors were also sitting on the sofa, but Sh. … … was sitting in front of Sh. … ….”

Witness 2:

“When I reached his room, our four directors were already present there.”

Witness 3:

“Accordingly, I reached his chamber, other directors including … … were sitting there.”

Witness 4:

“When I reached his chamber, all other three directors were already present there.”

The trial court, while acquitting all the accused persons, considered the various contradictions in the deposition of the prosecution witnesses, including the aspect mentioned above.

Similar contradictions were brought on record, which ultimately led the trial court to disbelieve the prosecution witnesses and the prosecution story, leading to the acquittal of the accused persons. The same is a classic case of the Rashomon Effect being put into use.

The Rashomon Effect, which symbolizes the general cultural notion about the relativity of truth and the unreliability of memory, can come to good use for any defence lawyer to have his client acquitted.

The authors are Vijay Aggarwal and Mudit Jain.