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My topic is how to "map" the text and structure of our Constitution onto the texture and topology of "cyberspace". That's the term coined by cyberpunk novelist William Gibson, which many now use to describe the "place" — a place without physical walls or even physical dimensions — where ordinary telephone conversations "happen," where voice–mail and e-mail messages are stored and sent back and forth, and where computer-generated graphics are transmitted and transformed, all in the form of interactions, some real-time and some delayed, among countless users, and between users and the computer itself.
Some use the "cyberspace" concept to designate fantasy worlds or "virtual realities" of the sort Gibson described in his novel “Neuromancer”, in which people can essentially turn their minds into computer peripherals capable of perceiving and exploring the data matrix. The whole idea of "virtual reality," of course, strikes a slightly odd note. As one of Lily Tomlin's most memorable characters once asked, "What's reality, anyway, but a collective hunch?" Work in this field tends to be done largely by people who share the famous observation that reality is overrated!
However that may be, "cyberspace" connotes to some users the sorts of technologies that people in Silicon Valley (like Jaron Lanier at VPL Research, for instance) work on when they try to develop "virtual racquetball" for the disabled, computer-aided design systems that allow architects to walk through "virtual buildings" and remodel them before they are built, "virtual conferencing" for business meetings, or maybe someday even "virtual day care centers" for latchkey children. The user snaps on a pair of goggles hooked up to a high-powered computer terminal, puts on a special set of gloves (and perhaps other gear) wired into the same computer system, and, looking a little bit like Darth Vader, pretty much steps into a computer-driven, drug-free, 3-dimensional, interactive, infinitely expandable hallucination complete with sight, sound and touch — allowing the user literally to move through, and experience, information.
I'm using the term "cyberspace" much more broadly, as many have lately. I'm using it to encompass the full array of computer-mediated audio and/or video interactions that are already widely dispersed in modern societies — from things as ubiquitous as the ordinary telephone, to things that are still coming on-line like computer bulletin boards and networks like Prodigy, or like the WELL ("Whole Earth 'Lectronic Link"), based here in San Francisco. My topic, broadly put, is the implications of that rapidly expanding array for our constitutional order. It is a constitutional order that tends to carve up the social, legal, and political universe along lines of "physical place" or "temporal proximity." The critical thing to note is that these very lines, in cyberspace, either get bent out of shape or fade out altogether. The question, then, becomes: when the lines along which our Constitution is drawn warp or vanish, what happens to the Constitution itself?
The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I (dissent).
Could it be that the high-tech, closed-circuit TV context, almost as familiar to the Court's youngest Justice as to his even younger law clerks, might've had some bearing on Justice Scalia's sly invocation of "virtual" constitutional reality? Even if Justice Scalia wasn't making a pun on "virtual reality," and I suspect he wasn't, his dissenting opinion about the Confrontation Clause requires us to "confront" the recurring puzzle of how constitutional provisions written two centuries ago should be construed and applied in ever-changing circumstances.
Should contemporary society's technology-driven cost-benefit fixation be allowed to water down the old-fashioned value of direct confrontation that the Constitution seemingly enshrined as basic? I would hope not. In that respect, I find myself in complete agreement with Justice Scalia.
But new technological possibilities for seeing your accuser clearly without having your accuser see you at all — possibilities for sparing the accuser any discomfort in ways that the accuser couldn't be spared before one-way mirrors or closed-circuit Tvs were developed — should lead us at least to ask ourselves whether two-way confrontation, in which your accuser is supposed to be made uncomfortable, and thus less likely to lie, really is the core value of the Confrontation Clause. If so, "virtual" confrontation should be held constitutionally insufficient. If not — if the core value served by the Confrontation Clause is just the ability to watch your accuser say that you did it — then "virtual" confrontation should suffice. New technologies should lead us to look more closely at just what values the Constitution seeks to preserve. New technologies should not lead us to react reflexively either way — either by assuming that technologies the Framers didn't know about make their concerns and values obsolete, or by assuming that those new technologies couldn't possibly provide new ways out of old dilemmas and therefore should be ignored altogether.
The one-way mirror yields a fitting metaphor for the task we confront. As the Supreme Court said in a different context several years ago, "The mirror image presented (here) requires us to step through an analytical looking glass to resolve it." (“NCAA v. Tarkanian”, 109 S. Ct. at 462.) The world in which the Sixth Amendment's Confrontation Clause was written and ratified was a world in which "being confronted with" your accuser necessarily meant a simultaneous physical confrontation so that your accuser had to perceive you being accused by him. Closed-circuit television and one-way mirrors changed all that by decoupling those two dimensions of confrontation, marking a shift in the conditions of information-transfer that is in many ways typical of cyberspace.
What does that sort of shift mean for constitutional analysis? A common way to react is to treat the pattern as it existed prior to the new technology (the pattern in which doing "A" necessarily included doing "B") as essentially arbitrary or accidental. Taking this approach, once the technological change makes it possible to do "A" without "B" — to see your accuser without having him or her see you, or to read someone's mail without her knowing it, to switch examples — one concludes that the "old" Constitution's inclusion of "B" is irrelevant; one concludes that it is enough for the government to guarantee "A" alone. Sometimes that will be the case; but it's vital to understand that, sometimes, it won't be.
Contemporary writers from Michel Foucault, in “The Archaeology of Knowledge”, through George Lakoff, in “Women, Fire, and Dangerous Things”, use Borges' Chinese encyclopedia to illustrate a range of different propositions, but the core proposition is the supposed arbitrariness — the political character, in a sense — of all culturally imposed categories.
At one level, that proposition expresses a profound truth and may encourage humility by combating cultural imperialism. At another level, though, the proposition tells a dangerous lie: it suggests that we have descended into the nihilism that so obsessed Nietzsche and other thinkers — a world where everything is relative, all lines are up for grabs, all principles and connections are just matters of purely subjective preference or, worse still, arbitrary convention. Whether we believe that killing animals for food is wrong, for example, becomes a question indistinguishable from whether we happen to enjoy eating beans, rice and tofu.
This is a particularly pernicious notion in a era when we pass more and more of our lives in cyberspace, a place where, almost by definition, our most familiar landmarks are rearranged or disappear altogether — because there is a pervasive tendency, even (and perhaps especially) among the most enlightened, to forget that the human values and ideals to which we commit ourselves may indeed be universal and need not depend on how our particular cultures, or our latest technologies, carve up the universe we inhabit. It was my very wise colleague from Yale, the late Art Leff, who once observed that, even in a world without an agreed-upon God, we can still agree — even if we can't "prove" mathematically — that "napalming babies is wrong."
The Constitution's core values, I'm convinced, need not be transmogrified, or metamorphosed into oblivion, in the dim recesses of cyberspace. But to say that they need not be lost there is hardly to predict that they will not be. On the contrary, without further thought and awareness, the danger is clear and present that they will be.
Electronic trespassers like Kevin Mitnik don't stop with cracking pay phones, but break into NORAD — the North American Defense Command computer in Colorado Springs — not in a “WarGames” movie, but in real life.
Less challenging to national security but more ubiquitously threatening, computer crackers download everyman's credit history from institutions like TRW; start charging phone calls (and more) to everyman's number; set loose "worm" programs that shut down thousands of linked computers; and spread "computer viruses" through everyman's work or home PC.
It is not only the government that feels threatened by "computer crime"; both the owners and the users of private information services, computer bulletin boards, gateways, and networks feel equally vulnerable to this new breed of invisible trespasser. The response from the many who sense danger has been swift, and often brutal, as a few examples illustrate.
Last March, U.S. Secret Service agents staged a surprise raid on Steve Jackson Games, a small games manufacturer in Austin, Texas, and seized all paper and electronic drafts of its newest fantasy role-playing game, “GURPS(reg.t.m.) Cyberpunk”, calling the game a "handbook for computer crime."
By last Spring, up to one quarter of the U.S. Treasury Department's investigators had become involved in a project of eavesdropping on computer bulletin boards, apparently tracking notorious hackers like "Acid Phreak" and "Phiber Optik" through what one journalist dubbed "the dark canyons of cyberspace."
Last May, in the now famous (or infamous) "Operation Sun Devil," more than 150 secret service agents teamed up with state and local law enforcement agencies, and with security personnel from AT&T, American Express, U.S. Sprint, and a number of the regional Bell telephone companies, armed themselves with over two dozen search warrants and more than a few guns, and seized 42 computers and 23,000 floppy discs in 14 cities from New York to Texas. Their target: a loose-knit group of people in their teens and twenties, dubbed the "Legion of Doom."
I am not describing an Indiana Jones movie. I'm talking about America in the 1990s.
The Constitution's architecture can too easily come to seem quaintly irrelevant, or at least impossible to take very seriously, in the world as reconstituted by the microchip. I propose today to canvass five axioms of our constitutional law — five basic assumptions that I believe shape the way American constitutional scholars and judges view legal issues — and to examine how they can adapt to the cyberspace age. My conclusion (and I will try not to give away too much of the punch line here) is that the Framers of our Constitution were very wise indeed. They bequeathed us a framework for all seasons, a truly astonishing document whose principles are suitable for all times and all technological landscapes.
Indeed, in many ways contemporary constitutional law is still trapped within and stunted by that paradigm. But today at least some post-modern constitutionalists tend to think and talk in the language of relativity, quantum mechanics, and chaos theory. This may quite naturally suggest to some observers that the Constitution's basic strategy of decentralizing and diffusing power by constraining and fragmenting governmental authority in particular has been rendered obsolete.
The institutional separation of powers among the three federal branches of government, the geographical division of authority between the federal government and the fifty state governments, the recognition of national boundaries, and, above all, the sharp distinction between the public and private spheres, become easy to deride as relics of a simpler, pre-computer age. Thus Eli Noam, in the First Ithiel de Sola Pool Memorial Lecture, delivered last October at MIT, notes that computer networks and network associations acquire quasi-governmental powers as they necessarily take on such tasks as mediating their members' conflicting interests, establishing cost shares, creating their own rules of admission and access and expulsion, even establishing their own de facto taxing mechanisms. In Professor Noam's words, "networks become political entities," global nets that respect no state or local boundaries. Restrictions on the use of information in one country (to protect privacy, for example) tend to lead to export of that information to other countries, where it can be analyzed and then used on a selective basis in the country attempting to restrict it. "Data havens" reminiscent of the role played by the Swiss in banking may emerge, with few restrictions on the storage and manipulation of information.
A tempting conclusion is that, to protect the free speech and other rights of users in such private networks, judges must treat these networks not as associations that have rights of their own against the government but as virtual "governments" in themselves — as entities against which individual rights must be defended in the Constitution's name. Such a conclusion would be misleadingly simplistic. There are circumstances, of course, when non-governmental bodies like privately owned "company towns" or even huge shopping malls should be subjected to legislative and administrative controls by democratically accountable entities, or even to judicial controls as though they were arms of the state — but that may be as true (or as false) of multinational corporations or foundations, or transnational religious organizations, or even small-town communities, as it is of computer-mediated networks. It's a fallacy to suppose that, just because a computer bulletin board or network or gateway is something like a shopping mall, government has as much constitutional duty — or even authority — to guarantee open public access to such a network as it has to guarantee open public access to a privately owned shopping center like the one involved in the U.S. Supreme Court's famous “PruneYard Shopping Center” decision of 1980, arising from nearby San Jose.
The rules of law, both statutory and judge-made, through which each state allocates private powers and responsibilities themselves represent characteristic forms of government action. That's why a state's rules for imposing liability on private publishers, or for deciding which private contracts to enforce and which ones to invalidate, are all subject to scrutiny for their consistency with the federal Constitution. But as a general proposition it is only what governments do, either through such rules or through the actions of public officials, that the United States Constitution constrains. And nothing about any new technology suddenly erases the Constitution's enduring value of restraining government above all else, and of protecting all private groups, large and small, from government.
It's true that certain technologies may become socially indispensable — so that equal or at least minimal access to basic computer power, for example, might be as significant a constitutional goal as equal or at least minimal access to the franchise, or to dispute resolution through the judicial system, or to elementary and secondary education. But all this means (or should mean) is that the Constitution's constraints on government must at times take the form of imposing affirmative duties to assure access rather than merely enforcing negative prohibitions against designated sorts of invasion or intrusion.
Today, for example, the government is under an affirmative obligation to open up criminal trials to the press and the public, at least where there has not been a particularized finding that such openness would disrupt the proceedings. The government is also under an affirmative obligation to provide free legal assistance for indigent criminal defendants, to assure speedy trials, to underwrite the cost of counting ballots at election time, and to desegregate previously segregated school systems. But these occasional affirmative obligations don't, or shouldn't, mean that the Constitution's axiomatic division between the realm of public power and the realm of private life should be jettisoned.
Nor would the "indispensability" of information technologies provide a license for government to impose strict content, access, pricing, and other types of regulation. Books are indispensable to most of us, for example — but it doesn't follow that government should therefore be able to regulate the content of what goes onto the shelves of bookstores. The right of a private bookstore owner to decide which books to stock and which to discard, which books to display openly and which to store in limited access areas, should remain inviolate. And note, incidentally, that this needn't make the bookstore owner a "publisher" who is liable for the words printed in the books on her shelves. It's a common fallacy to imagine that the moment a computer gateway or bulletin board begins to exercise powers of selection to control who may be on line, it must automatically assume the responsibilities of a newscaster, a broadcaster, or an author. For computer gateways and bulletin boards are really the "bookstores" of cyberspace; most of them organize and present information in a computer format, rather than generating more information content of their own.
The second constitutional axiom, one closely related to the private-public distinction of the first axiom, is that a person's mind, body, and property belong to that person and not to the public as a whole. Some believe that cyberspace challenges that axiom because its entire premise lies in the existence of computers tied to electronic transmission networks that process digital information. Because such information can be easily replicated in series of "1"s and "0"s, anything that anyone has come up with in virtual reality can be infinitely reproduced. I can log on to a computer library, copy a "virtual book" to my computer disk, and send a copy to your computer without creating a gap on anyone's bookshelf. The same is true of valuable computer programs, costing hundreds of dollars, creating serious piracy problems. This feature leads some, like Richard Stallman of the Free Software Foundation, to argue that in cyberspace everything should be free — that information can't be owned. Others, of course, argue that copyright and patent protections of various kinds are needed in order for there to be incentives to create "cyberspace property" in the first place.
Needless to say, there are lively debates about what the optimal incentive package should be as a matter of legislative and social policy. But the only constitutional issue, at bottom, isn't the utilitarian or instrumental selection of an optimal policy. Social judgments about what ought to be subject to individual appropriation, in the sense used by John Locke and Robert Nozick, and what ought to remain in the open public domain, are first and foremost political decisions.
To be sure, there are some constitutional constraints on these political decisions. The Constitution does not permit anything and everything to be made into a private commodity. Votes, for example, theoretically cannot be bought and sold. Whether the Constitution itself should be read (or amended) so as to permit all basic medical care, shelter, nutrition, legal assistance and, indeed, computerized information services, to be treated as mere commodities, available only to the highest bidder, are all terribly hard questions — as the Eastern Europeans are now discovering as they attempt to draft their own constitutions. But these are not questions that should ever be confused with issues of what is technologically possible, about what is realistically enforceable, or about what is socially desirable.
Similarly, the Constitution does not permit anything and everything to be socialized and made into a public good available to whoever needs or "deserves" it most. I would hope, for example, that the government could not use its powers of eminent domain to "take" live body parts like eyes or kidneys or brain tissue for those who need transplants and would be expected to lead particularly productive lives. In any event, I feel certain that whatever constitutional right each of us has to inhabit his or her own body and to hold onto his or her own thoughts and creations should not depend solely on cost-benefit calculations, or on the availability of technological methods for painlessly effecting transfers or for creating good artificial substitutes.
A third constitutional axiom, like the first two, reflects a deep respect for the integrity of each individual and a healthy skepticism toward government. The axiom is that, although information and ideas have real effects in the social world, it's not up to government to pick and choose for us in terms of the content of that information or the value of those ideas.
This notion is sometimes mistakenly reduced to the naive child's ditty that "sticks and stones may break my bones, but words can never hurt me." Anybody who's ever been called something awful by children in a schoolyard knows better than to believe any such thing. The real basis for First Amendment values isn't the false premise that information and ideas have no real impact, but the belief that information and ideas are too important to entrust to any government censor or overseer.
If we keep that in mind, and only if we keep that in mind, will we be able to see through the tempting argument that, in the Information Age, free speech is a luxury we can no longer afford. That argument becomes especially tempting in the context of cyberspace, where sequences of "0"s and "1"s may become virtual life forms. Computer "viruses" roam the information nets, attaching themselves to various programs and screwing up computer facilities. Creation of a computer virus involves writing a program; the program then replicates itself and mutates. The electronic code involved is very much like DNA. If information content is "speech," and if the First Amendment is to apply in cyberspace, then mustn't these viruses be "speech" — and mustn't their writing and dissemination be constitutionally protected? To avoid that nightmarish outcome, mustn't we say that the First Amendment is inapplicable to cyberspace?
The answer is no. Speech is protected, but deliberately yelling "Boo!" at a cardiac patient may still be prosecuted as murder. Free speech is a constitutional right, but handing a bank teller a hold-up note that says, "Your money or your life," may still be punished as robbery. Stealing someone's diary may be punished as theft — even if you intend to publish it in book form. And the Supreme Court, over the past fifteen years, has gradually brought advertising within the ambit of protected expression without preventing the government from protecting consumers from deceptive advertising. The lesson, in short, is that constitutional principles are subtle enough to bend to such concerns. They needn't be broken or tossed out.
in Science and Technology Cannot "Disprove"
A fourth constitutional axiom is that the human spirit is something beyond a physical information processor. That axiom, which regards human thought processes as not fully reducible to the operations of a computer program, however complex, must not be confused with the silly view that, because computer operations involve nothing more than the manipulation of "on" and "off" states of myriad microchips, it somehow follows that government control or outright seizure of computers and computer programs threatens no First Amendment rights because human thought processes are not directly involved. To say that would be like saying that government confiscation of a newspaper's printing press and tomorrow morning's copy has nothing to do with speech but involves only a taking of metal, paper, and ink. Particularly if the seizure or the regulation is triggered by the content of the information being processed or transmitted, the First Amendment is of course fully involved. Yet this recognition that information processing by computer entails something far beyond the mere sequencing of mechanical or chemical steps still leaves a potential gap between what computers can do internally and in communication with one another — and what goes on within and between human minds. It is that gap to which this fourth axiom is addressed; the very existence of any such gap is, as I'm sure you know, a matter of considerable controversy.
What if people like the mathematician and physicist Roger Penrose, author of “The Emperor's New Mind”, are wrong about human minds? In that provocative recent book, Penrose disagrees with those Artificial Intelligence, or AI, gurus who insist that it's only a matter of time until human thought and feeling can be perfectly simulated or even replicated by a series of purely physical operations — that it's all just neurons firing and neurotransmitters flowing, all subject to perfect modeling in suitable computer systems. Would an adherent of that AI orthodoxy, someone whom Penrose fails to persuade, have to reject as irrelevant for cyberspace those constitutional protections that rest on the anti-AI premise that minds are not reducible to really fancy computers?
Consider, for example, the Fifth Amendment, which provides that "no person shall be . . . compelled in any criminal case to be a witness against himself." The Supreme Court has long held that suspects may be required, despite this protection, to provide evidence that is not "testimonial" in nature — blood samples, for instance, or even exemplars of one's handwriting or voice. Last year, in a case called “Pennsylvania v. Muniz”, the Supreme Court held that answers to even simple questions like "When was your sixth birthday?" are testimonial because such a question, however straightforward, nevertheless calls for the product of mental activity and therefore uses the suspect's mind against him. But what if science could eventually describe thinking as a process no more complex than, say, riding a bike or digesting a meal? Might the progress of neurobiology and computer science eventually overthrow the premises of the “Muniz” decision?
I would hope not. For the Constitution's premises, properly understood, are normative rather than descriptive. The philosopher David Hume was right in teaching that no "ought" can ever be logically derived from an "is." If we should ever abandon the Constitution's protection for the distinctively and universally human, it won't be because robotics or genetic engineering or computer science have led us to deeper truths, but rather because they have seduced us into more profound confusions. Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is "right" or what is "wrong." The fact that those notions are elusive and subject to endless debate need not make them totally contingent on contemporary technology.
In a sense, that's the fifth and final constitutional axiom I would urge upon this gathering: that the Constitution's norms, at their deepest level, must be invariant under merely technological transformations. Our constitutional law evolves through judicial interpretation, case by case, in a process of reasoning by analogy from precedent. At its best, that process is ideally suited to seeing beneath the surface and extracting deeper principles from prior decisions. At its worst, though, the same process can get bogged down in superficial aspects of preexisting examples, fixating upon unessential features while overlooking underlying principles and values.
When the Supreme Court in 1928 first confronted wiretapping and held in “Olmstead v. United States” that such wiretapping involved no "search" or "seizure" within the meaning of the Fourth Amendment's prohibition of "unreasonable searches and seizures," the majority of the Court reasoned that the Fourth Amendment "itself shows that the search is to be of material things — the person, the house, his papers or his effects," and said that "there was no searching" when a suspect's phone was tapped because the Constitution's language "cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office." After all, said the Court, the intervening wires "are not part of his house or office any more than are the highways along which they are stretched." Even to a law student in the 1960s, as you might imagine, that "reasoning" seemed amazingly artificial. Yet the “Olmstead” doctrine still survived.
It would be illuminating at this point to compare the Supreme Court's initial reaction to new technology in “Olmstead” with its initial reaction to new technology in “Maryland v. Craig”, the 1990 closed-circuit television case with which we began this discussion. In “Craig”, a majority of the Justices assumed that, when the 18th- century Framers of the Confrontation Clause included a guarantee of two-way physical confrontation, they did so solely because it had not yet become technologically feasible for the accused to look his accuser in the eye without having the accuser simultaneously watch the accused. Given that this technological obstacle has been removed, the majority assumed, one-way confrontation is now sufficient. It is enough that the accused not be subject to criminal conviction on the basis of statements made outside his presence.
In “Olmstead”, a majority of the Justices assumed that, when the 18th-century authors of the Fourth Amendment used language that sounded "physical" in guaranteeing against invasions of a person's dwelling or possessions, they did so not solely because physical invasions were at that time the only serious threats to personal privacy, but for the separate and distinct reason that intangible invasions simply would not threaten any relevant dimension of Fourth Amendment privacy.
In a sense, “Olmstead” mindlessly read a new technology out of the Constitution, while “Craig” absent-mindedly read a new technology into the Constitution. But both decisions — “Olmstead” and “Craig” — had the structural effect of withholding the protections of the Bill of Rights from threats made possible by new information technologies. “Olmstead” did so by implausibly reading the Constitution's text as though it represented a deliberate decision not to extend protection to threats that 18th-century thinkers simply had not foreseen. “Craig” did so by somewhat more plausibly — but still unthinkingly — treating the Constitution's seemingly explicit coupling of two analytically distinct protections as reflecting a failure of technological foresight and imagination, rather than a deliberate value choice.
The “Craig” majority's approach appears to have been driven in part by an understandable sense of how a new information technology could directly protect a particularly sympathetic group, abused children, from a traumatic trial experience. The “Olmstead” majority's approach probably reflected both an exaggerated estimate of how difficult it would be to obtain wiretapping warrants even where fully justified, and an insufficient sense of how a new information technology could directly threaten all of us. Although both “Craig” and “Olmstead” reveal an inadequate consciousness about how new technologies interact with old values, “Craig” at least seems defensible even if misguided, while “Olmstead” seems just plain wrong.
Around 23 years ago, as a then-recent law school graduate serving as law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government's electronic surveillance of a suspected criminal — in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect's privacy was accomplished without physical trespass into a "constitutionally protected area," the Federal Government argued, relying on “Olmstead”, that there had been no "search" or "seizure," and therefore that the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," simply did not apply.
At first, there were only four votes to overrule “Olmstead” and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I'm proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number from four to seven — and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment "protects people, not places." (389 U.S. at 351.) In that decision, “Katz v. United States”, the Supreme Court finally repudiated “Olmstead” and the many decisions that had relied upon it and reasoned that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting free speech as well as the Fourth Amendment purposes of protecting privacy require treating as a "search" any invasion of a person's confidential telephone communications, with or without physical trespass.
Sadly, nine years later, in “Smith v. Maryland”, the Supreme Court retreated from the “Katz” principle by holding that no search occurs and therefore no warrant is needed when police, with the assistance of the telephone company, make use of a "pen register", a mechanical device placed on someone's phone line that records all numbers dialed from the phone and the times of dialing. The Supreme Court, over the dissents of Justices Stewart, Brennan, and Marshall, found no legitimate expectation of privacy in the numbers dialed, reasoning that the digits one dials are routinely recorded by the phone company for billing purposes. As Justice Stewart, the author of “Katz”, aptly pointed out, "that observation no more than describes the basic nature of telephone calls . . . . It is simply not enough to say, after “Katz”, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will expose them to the police." (442 U.S. at 746-747.) Today, the logic of “Smith” is being used to say that people have no expectation of privacy when they use their cordless telephones since they know or should know that radio waves can be easily monitored!
It is easy to be pessimistic about the way in which the Supreme Court has reacted to technological change. In many respects, “Smith” is unfortunately more typical than “Katz” of the way the Court has behaved. For example, when movies were invented, and for several decades thereafter, the Court held that movie exhibitions were not entitled to First Amendment protection. When community access cable TV was born, the Court hindered municipal attempts to provide it at low cost by holding that rules requiring landlords to install small cable boxes on their apartment buildings amounted to a compensable taking of property. And in “Red Lion v. FCC”, decided twenty-two years ago but still not repudiated today, the Court ratified government control of TV and radio broadcast content with the dubious logic that the scarcity of the electromagnetic spectrum justified not merely government policies to auction off, randomly allocate, or otherwise ration the spectrum according to neutral rules, but also much more intrusive and content-based government regulation in the form of the so-called "fairness doctrine."
Although the Supreme Court and the lower federal courts have taken a somewhat more enlightened approach in dealing with cable television, these decisions for the most part reveal a curious judicial blindness, as if the Constitution had to be reinvented with the birth of each new technology. Judges interpreting a late 18th century Bill of Rights tend to forget that, unless its terms are read in an evolving and dynamic way, its values will lose even the static protection they once enjoyed. Ironically, fidelity to original values requires flexibility of textual interpretation. It was Judge Robert Bork, not famous for his flexibility, who once urged this enlightened view upon then Justice Scalia, when the two of them sat as colleagues on the U.S. Court of Appeals for the D.C. Circuit.
Judicial error in this field tends to take the form of saying that, by using modern technology ranging from the telephone to the television to computers, we "assume the risk." But that typically begs the question. Justice Harlan, in a dissent penned two decades ago, wrote: "Since it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the desirability of saddling them upon society." (“United States v. White”, 401 U.S. at 786). And, I would add, we should not merely recite risks without examining how imposing those risks comports with the Constitution's fundamental values of freedom, privacy, and equality.
in generally treating information processed electronically as though it were somehow less entitled to protection for that reason.
The lesson to be learned is that these choices and these mistakes are not dictated by the Constitution. They are decisions for us to make in interpreting that majestic charter, and in implementing the principles that the Constitution establishes.
If my own life as a lawyer and legal scholar could leave just one legacy, I'd like it to be the recognition that the Constitution as a whole "protects people, not places." If that is to come about, the Constitution as a whole must be read through a technologically transparent lens. That is, we must embrace, as a rule of construction or interpretation, a principle one might call the "cyberspace corollary." It would make a suitable Twenty-seventh Amendment to the Constitution, one befitting the 200th anniversary of the Bill of Rights. Whether adopted all at once as a constitutional amendment, or accepted gradually as a principle of interpretation that I believe should obtain even without any formal change in the Constitution's language, the corollary I would propose would do for technology in 1991 what I believe the Constitution's Ninth Amendment, adopted in 1791, was meant to do for text.
The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That amendment provides added support for the long-debated, but now largely accepted, "right of privacy" that the Supreme Court recognized in such decisions as the famous birth control case of 1965, “Griswold v. Connecticut”. The Ninth Amendment's simple message is: The text used by the Constitution's authors and ratifiers does not exhaust the values our Constitution recognizes. Perhaps a Twenty-seventh Amendment could convey a parallel and equally simple message: The technologies familiar to the Constitution's authors and ratifiers similarly do not exhaust the threats against which the Constitution's core values must be protected.
"This Constitution's protections for the freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."
Моя тема — как "наложить" текст и структуру нашей Конституции на текстуру и топологию "киберпространства". Это термин, созданный автором киберпанковских новелл Уильямом Гибсоном, который сейчас широко используется для обозначения "места" — места без физических стен и физических измерений — где "происходит" обычная телефонная беседа, где сообщения голосовой и электронной почты путешествуют туда и обратно, и где сгенерированная компьютером графика передается и трансформируется, взаимодействуя, как в реальном времени, так и с задержкой, среди бесчисленных пользователей, а также между пользователями и самим компьютером.
Некоторые используют понятие "киберпространства", чтобы обозначить фантастические миры, или "виртуальные реальности", хорошо описанные Гибсоном в его романе “Neuromancer”, в котором люди по существу могут превращать свой мозг в периферийные устройства компьютера, способные получать и обрабатывать данные. В целом идея "виртуальной реальности," конечно, звучит немного странно. Как спросил один из наиболее запоминающихся героев Лили Томлин: "Реальность ли это или коллективное помешательство?". Работа в этом направлении делается в основном людьми, которые разделяют известное мнение, что реальность переоценена!
Тем не менее, может быть, "киберпространство" означает для некоторых пользователей своего рода технологии, над которыми работают люди в Силиконовой Долине (как Джейрон Ланье из Компании VPL Research, например), когда они пытаются разработать "виртуальную игру" для инвалидов, системы САПР, которые позволяют архитекторам ходить по "виртуальным зданиям" и переделывать их прежде, чем они построены, "виртуальные переговоры" для деловых совещаний, или может быть когда-нибудь даже "виртуальные детские сады" для запертых дома детей. Пользователь надевает очки, подключенные к мощному компьютеру, вместе со специальным комплектом электронных перчаток (и возможно другим устройством), подключенным к этому же компьютеру, и, выглядя похожим на героя фильма "Звездные войны", совершает первые шаги в управляемую компьютером, трехмерную, интерактивную, бесконечно расширяемую галлюцинацию ненаркотической природы, которую можно видеть, слышать и трогать — позволяющую пользователю буквально перемещаться сквозь информацию и ощущать ее.
Я использую термин "киберпространство" гораздо более широко, чем многие в последнее время. Я его использую, чтобы охватить полный объем распространяемых с помощью компьютеров звуков и/или изображений, которые уже широко рассеялись в современном обществе — начиная от вещей таких же вездесущих как обычный телефон, и заканчивая вещами, которые все еще не распространились широко подобно компьютерным доскам объявлений и сетям как Prodigy, или как WELL ("Whole Earth 'Lectronic Link"), основанная здесь в Сан-Франциско. В общем и целом моя тема — вовлечение этого быстро распространяющегося проявления в наш конституционный порядок. Это тот конституционный порядок, который делит общественную, юридическую, и политическую вселенную по границам "физического места" или "временной близости". Особенно стоит заметить, что эти самые границы в киберпространстве теряют форму или совсем исчезают. Вопрос, следовательно, таков: когда границы, по которым написана наша Конституция, искажаются или исчезают, что случается с самой Конституцией?
Суд убедительно доказал, что Мэрилендская процедура служит законным интересам и дает обвиняемому фактически все гарантии Статьи об Очной Ставке (все, кроме очной ставки). Я убежден, следовательно, что Мэрилендская процедура фактически является конституционной. Поскольку фактически она, тем не менее, не конституционная, я (возражаю).
Возможно ли, что высокотехнологичное, закрытое телевидение, так же знакомое самому молодому судье в составе суда, как его таким же молодым сотрудникам, должно было бы иметь некоторое отношение к хитрому вызову Судьи Скалиа "виртуальной" конституционной реальности? Даже если бы Судья Скалиа не употребил словосочетание "виртуальная реальность", а я подозреваю, что не употребил, его несогласное мнение о Статье об Очной Ставке требует от нас “поставить перед собой” снова приходящую на ум задачу, как конституционные положения, записанные два столетия тому назад, должны истолковываться и применяться в постоянно меняющихся обстоятельствах.
Должна ли технологическая навязчивая идея издержек-пользы современного общества принижать старомодное значение прямой очной ставки, которая Конституцией на вид сохраняется как первостепенная? Я надеюсь, что нет. В этом отношении я полностью согласен с Судьей Скалиа.


text:
Before :- A.K. Patnaik & Swatanter Kumar, JJ.
Criminal Appeal No. 77 of 2007. D/d. 29.2.2012.
For the Appellant :- Mr. P. Narsimhan, Advocate.
For the Respondent :- Ms. Kamlendra Mishra, Advocate.
JUDGMENT Swatanter Kumar, J. - The present appeal is directed against the judgment and order dated 21st March, 2006 of the High Court of Judicature at Allahabad, Lucknow Bench, which had partially accepted the appeal by acquitting the accused persons of the offence under Section 323 read with Section 34 of the Indian Penal Code, 1860 (hereafter, 'IPC'), but affirmed the imposition of life imprisonment for the offence under Section 302 read with Section 34, IPC as awarded by the learned trial court vide its judgment dated 6th January, 1982. The trial court had found the four accused Ram Dutt (now dead), Thakur Prasad, Mano Dutt and Ram Narain guilty of an offence under Section 302, read with Section 34, IPC and also offence under Section 323, read with Section 34, IPC and had awarded them life imprisonment for the first offence and a fine of Rs. 1,000/- for the second, in default of which, to undergo rigorous imprisonment for three months.
2. This is a case where the incident, on 22nd October, 1977, which resulted in the death of Siya Ram, is admitted between the parties. The primary question that falls for determination is, as to which of the parties was the aggressor, besides determining the merits of the contentions raised on behalf of the appellant. Before noticing the prosecution version, we may notice that in the present case, six accused were charged and tried for an offence under Sections 302 and 323, both read with Section 34 IPC. Learned trial court, vide its judgment dated 6th January, 1982 had acquitted accused Sher Bahadur and Jagdish, while it convicted Ram Dutt, Thakur Prasad, Mano Dutt and Ram Narain for both the afore- stated offences. During the pendency of the appeal before the High Court, Ram Dutt died and the Court convicted the other accused vide its judgment under appeal.
3. Thakur Prasad had filed a separate appeal challenging the said judgment of the High Court, being SLP (Crl.) No. 3929 of 2006 titled Thakur Prasad v. State of U.P. which came to be dismissed by order of this Court dated 18th August, 2006. In other words, the conviction of the accused Thakur Prasad under Section 302 read with Section 34 IPC attained finality. However, vide the same order, this Court granted leave to appeal in the case of Mano Dutt and Ram Narain. This is how the present appeal has come up for final hearing before us.
4. The case of the prosecution is that Mano Dutt, Ram Narain and Jagdish are real brothers while Ram Dutt and Thakur Prasad are their cousins. On 22nd October, 1977 during day time, Siya Ram was doing earth filling in front of his sariya (a place of tethering cattle). The four accused, namely, Ram Dutt, Thakur Prasad, Ram Narain and Mano Dutt out of the six named accused had come there and asked Siya Ram not to do earth filling. Siya Ram told them that it was his land and he would not stop the work of land filling. Thereupon, Siya Ram called certain villagers. The matter was discussed with the villagers, all of whom said that the land was that of Siya Ram and he could carry on with land filling on his own land. After deciding this, the villagers went away and Siya Ram resumed the filling of the earth. Accused Ram Dutt, Thakur Prasad, Mano Dutt, Ram Narain, Jagdish and Sher Bahadur, armed with lathis, came there and chased Siya Ram. They said that they would finish Siya Ram. Siya Ram was able to run for a short distance away, whereafter all the accused surrounded him in front of the house of one Fateh Mohmad. Accused Ram Dutt, Thakur Prasad, Mano Dutt and Ram Narain started beating Siya Ram with their lathis. The father of Siya Ram, Nankoo and brother Salik Ram rushed towards Siya Ram to rescue him. Accused Sher Bahadur and Jagdish intercepted them in front of one Chiddan's door and beat them with their lathis. Siya Ram fell down after getting the lathi blows. Siya Ram raised alarm, but still these accused persons continued to beat him and in the meanwhile, Smt. Sangam Devi, Bhurey and Pradhan came there. The Pradhan snatched the lathis of the four accused, who then fled away from the scene. Siya Ram sustained serious injuries. Nankoo and Salik Ram also sustained injuries. Pradhan and the other villagers took the injured to the Police Station.
5. The incident was narrated in the form of a report of occurrence, by the deceased Siya Ram, who was in an injured state at that time. The same was transcribed by Panna Lal Pandey, PW3 and submitted to the Police Station, where a First Information Report (hereafter, 'FIR') Exhibit Ka7 was prepared.
6. On this statement, the officer present at the police station had registered a case under Section 308, IPC and the investigation was taken over by C.R. Malviya. During investigation, C.R. Malviya recorded the statements of a number of witnesses as well as sent Siya Ram to the hospital. Siya Ram succumbed to his injuries on 24th October, 1977 at about 8.00 a.m. in the District Hospital, Faizabad. Upon his death, the offence was converted to one under Section 302, IPC. The Investigating Officer visited the spot, recovered blood-stained earth, Ex. Ka-8 and prepared the site plan, Ext. Ka-9 and examined various witnesses. After completion of the investigation, the charge sheet was filed before the court of competent jurisdiction. The trial Court vide its order dated 30th July, 1980 charged the accused with offences under Sections 147, 304/149 and 323/149. However, subsequently, the charge was amended and all the accused were charged with offences under Sections 302/149-147 and 323/149, IPC. The accused pleaded not guilty and faced trial before the Court of Sessions. As already noticed, out of the six accused, four were convicted by the trial court. One accused, namely Ram Dutt, died during pendency of the appeal before the High Court and all the other accused were acquitted of the offences under Section 323/34 IPC, but convicted for offences under Section 302/34 IPC. For the reasons afore- recorded in the present appeal, we are only concerned with the two accused, namely Mano Dutt, and Ram Narain.
7. The prosecution had examined Smt. Sangam Devi, PW-1 (wife of the deceased), Salik Ram, PW-2 (injured witness). Panna Lal Pandey, PW-3 (scribe of Siya Ram's statement) and two doctors, Dr. S.N. Rai (P.W.-4) and Dr. Surya Bhan Singh (P.W. 5), besides examining the formal witnesses.
"(1) Lacerated wound mark 3cm x 0.5cm on the left side of head on the parietal region.
(2) Bruise 9cm x 1.5cm in the left scapula region.
(3) Bruise 12cm x 1.5cm in the right scapula region of scalp.
(4) Bruise 9cm x 2cm in the right scapular region of scalp.
(5) Bruise 19cm x 2cm in the right scapular region of scalp."
9. This very doctor had examined Salik Ram, son of Nankoo and had noticed as many as five injuries on his body. He had also examined Nankoo and noticed four injuries on his person. The injuries on the bodies of Nankoo and Salik Ram both were found to be simple injuries and were caused with blunt object like lathi, while Siya Ram was transferred to the specialist for obtaining expert opinions on his injuries and for his treatment.
"(1) Lacerated wound 2.5cm x 3/4 cm x bone deep, on Rt. side head, 6.5cm above the eyebrow of right eye.
(2) Lacerated wound 2.5cm x 1cm x bone deep injures 1-2cm on the left side of the head.
(3) Contusion 6cm x 4cm in the right side of the face involving whole orbital area.
(4) Diffused, swelling on the Rt. Side of head parietal region."
"1. Comminuted fracture in the area of 11.5cm x 10cm on the right Parietal Region of the skull.
2. Comminuted fracture in the area of 6.5cm x 6.5cm in the frontal Bone was found.
3. Comminuted fracture in the area of 10cm x 4cm on the left side of temporo parietal Region was found.
4. Large quantity of blood was accumulated on the right side of head between skin and bone."
12. The doctor stated that, in his opinion, the cause of death was a shock due to ante-mortem injuries and loss of blood. He specifically stated that all the injuries are possible by blows of lathis. In his cross-examination, he clearly stated that these injuries are ordinarily sufficient to cause death.
13. It needs to be noticed that one of the appellants, namely Ram Dutt, had also allegedly lodged a report against the deceased Siya Ram, injured Nankoo, and two other sons of Nankoo, i.e., Salik Ram and Ram Dhiraj. After registering the FIR, the Investigating Officer in his report had also stated that the accused Ram Dutt had sustained some injuries on his person.
i) The prosecution did not examine the material witnesses like the investigating officer as well as other witnesses who, as per the case of the prosecution, were actually present at the time of occurrence of the incident.
ii) According to the prosecution, PW-1 and PW-2 both are eye- witnesses but they are the widow and brother of the deceased, and therefore, are interested witnesses and their statement cannot be relied upon by the Court.
iii) The accused persons themselves had lodged a counter report against the deceased, PW-2 and other relations of the deceased, alleging attack/aggression. This was not a counter blast but a true and correct happening of events as reported by the accused, against the complainants, in which the accused Ram Dutt had suffered injuries. For these reasons, the accused should be entitled to the benefit of doubt and consequently, to an order of acquittal.
iv) Even if the entire prosecution story is assumed to be correct, even then it does not constitute an offence under Section 302, IPC. In the facts and circumstances of the case, at the worst, the accused could be held guilty of an offence punishable under Section 304, Part-I, IPC.
v) The deceased had only three injuries, therefore, on the one hand, the story that six accused had assaulted him with lathis even when he was lying on the ground is not physically possible and on the other hand, the prosecution has failed to explain the injuries suffered by Ram Dutt, accused. Thus, it creates a specific doubt in the story of the prosecution.
vi) Lastly, it is contended that the dismissal of the other Special Leave Petition filed by Thakur Prasad does not have any bearing on the fate of the present appeal, inasmuch as the Court is vested with wide powers in terms of Section 38, IPC, to deal with the case of the present appellants on distinct and different footing. Even if Thakur Prasad's conviction for an offence under Section 302 read with Section 34 IPC has attained finality, the appellants may still be acquitted.
15. We have already noticed that the incident in question is admitted. According to the accused, the fight was started by the deceased and his relations and they had exercised their right of private self-defence, to protect themselves. To the contrary, according to the witnesses of the prosecution as well as according to the version given by the deceased, the accused were aggressive and had attacked the deceased and his family members after deliberately planning to assault and kill them. It is not a case where the circumstances, even remotely, can be construed to have satisfied the ingredients of self-defence. We may examine few of the circumstances in this case. From the record, it appears that Ram Dutt had lodged a complaint of the incident that took place on 22nd October, 1977 at about 12.00 p.m. According to this report the accused in that complaint (i.e., the deceased and his family members) had been putting earth on Ram Dutt's sariya, which he had forbade. There was verbal altercation between the parties and then the accused in that complaint (i.e., the deceased herein) started assaulting him with lathis and it was only by raising an alarm that the people of the village came to the place of occurrence and his life was saved. According to this complaint, he had suffered injuries on his head.
16. Firstly, this complaint had not been proved by Ram Dutt during the trial. Accordingly, the concurrent view taken by the courts below, that this document cannot be relied in evidence, cannot be faulted with. Furthermore, Ram Dutt did not examine a single witness in his defence to prove that he was attacked by the deceased and his family members or that they were putting earth at the door of Ram Dutt's sariya. No doubt, Ram Dutt was subjected to medical examination by the Medical Officer vide Ex. Kha 1. It was noticed that he had suffered lacerated wounds on the central and other regions of skull, and had complained of pain in left leg. This would show that Ram Dutt had suffered some injuries but where and how these injuries were suffered, was for him to establish, particularly when he had taken a specific stand that the deceased and his family members were at fault and were aggressive. He claims that they had caused serious injuries to his person and this incident happened in the presence of the villagers. It is a settled canon of evidence jurisprudence that one who alleges a fact must prove the same. It is also his case that the prosecution has not explained the injuries on his person and, therefore, the argument impressed upon the Court is that the attack with lathis was in exercise of self-defence and the failure of the prosecution to explain injuries on the person of Ram Dutt is a circumstance which creates a serious doubt in the story of the prosecution. We are not impressed with this contention primarily for the above reasons and also because of the fact that if the police was not investigating into the complaint, Ram Dutt was not helpless or remediless in law. He could have filed an application before the concerned Magistrate in accordance with the provisions of Code of Criminal Procedure, 1973 (Cr.P.C.) for directing the police to investigate and even to summon the accused in that complaint. But none of the accused, including Ram Dutt, took any of the steps available to them in law. When a person claims exercise of private self-defence, the onus lies on him to show that there were circumstances and occasions for exercising such a right. In other words, these basic facts must be established by the accused. Just because one circumstance exists amongst the various factors, which appears to favour the person claiming right of self-defence, does not mean that he gets the right to cause the death of the other person. Even the right of self-defence has to be exercised directly in proportion to the extent of aggression.
17. As per the medical report, the injuries on the body of Ram Dutt were found to be 'simple in nature'. On the other hand, we have a complete version of the prosecution, duly supported by witnesses, out of which PW1 and PW2 are eye- witnesses to the occurrence. The bone of contention between the parties was the statement of the deceased, that he was filling the earth over some land, which he claimed to be his land; according to the accused, the earth-filling was carried out in front of the door of Ram Dutt. According to both the parties, the villagers came to the spot. Out of the two versions, the one put forward by the prosecution and the other in the defence of the accused, the version of the prosecution, as has been disclosed by the eye-witnesses, is trustworthy, reliable and entirely plausible in the facts and circumstances of the case. The mere fact that the Investigating Officer has not been produced, or that there is no specific explanation on record as to how Ram Dutt suffered these injuries, would not vitiate the trial or the case of the prosecution in its entirety. These claims of the accused would have been relevant considerations, provided the accused had been able to establish the other facts alleged by them. It is not always mandatory for the prosecution to examine the Investigating Officer, provided it can establish its case beyond reasonable doubt even in his absence. The present case certainly falls in the latter class. Where the accused lead no defence, they cannot take benefit of the fact that the prosecution did not examine any independent witnesses. The accused would be deemed to have been aware of the consequences in law when they gave a statement admitting the occurrence but attributing aggression and default to the deceased and his family members.
18. Accused Thakur Prasad is also stated to own a sariya and was also allegedly using his lathi in self-defence, as according to their story, four persons with the deceased and his family members had attacked them. Strangely, Thakur Prasad suffered no injury. These are the circumstances which, examined cumulatively, would provide support to the case of prosecution.
"28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.
29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, "highly interested" witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or the other convicted due to animus or for some other oblique motive."
"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon. Furthermore, as noticed hereinbefore, at least Dhum Singh (PW 7) is an independent witness. He had no animus against the accused. False implication of the accused at his hand had not been suggested, far less established."
21. Again in a very recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra 2010(3) R.C.R.(Criminal) 430 : 2010(4) R.A.J. 18 : [(2010)6 SCC 673 : [2010(3) All India Criminal LR (S.C.) 171], this Court stated that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
22. As per PW5, Dr. Surya Bhan Singh, he had examined Salik Ram Yadav as well as Nankoo on 22nd October, 1977 itself and noticed as many as five injuries on Salik Ram and four injuries upon the person of Nankoo. He stated that the deceased was the son of Nankoo, while Salik Ram was his brother. These injuries were suffered by them from a blunt object. Salik Ram was examined as PW2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined.
"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
24. To the similar effect is the judgment of this Court in the case of Balraje @ Trimbak (supra).
25. Another argument with regard to appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW1 and PW2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law.
26. Again, we are not impressed by this contention, primarily for the reasons afore-recorded. Furthermore, it may also be noticed that non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. The Court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the Court would not fall in error of law in relying upon the statements of such witness. It is only when the Courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in the case of Anil Phukan v State of Assam 1993(3) R.C.R.(Criminal) 241 : [(1993)3 SCC 282].
27. Now we may examine as to the place and manner in which the incident occurred. It is a very important aspect of this case that the FIR itself was lodged by the deceased along with PW3 Panna Lal Pandey who transcribed the same at the police station itself. The deceased was seriously injured, but was fully aware of what he was doing and he had no reason to falsely implicate any person. His father and brother had also been injured in the occurrence. It is specifically recorded in the statement of these witnesses that when the appellant Mano Dutt and other accused came for the second time, to the place where the deceased was filling the earth at the sariya, they gave a lalkar 'Maro sale ko' and then assaulted him with lathis. When he tried to run away, he fell to the ground near the house of one Fateh Mohd. The blood-stained earth was collected from the front of Fateh Mohd. doors by the Investigating Officer vide Ext. Ka-8. Thereafter, the villagers had come and taken the lathis away from the accused persons. The deceased was taken to the police station and then to the hospital, where he died on 24th October, 1977. It is evident that all the accused persons had come prepared, mentally and physically, to assault the deceased and in furtherance to their common intention, had even given a lalkar to kill the deceased. This incident was witnessed by natural witnesses Nankoo and PW2 Salik Ram, as well as PW1 Smt. Sangam Devi. Nankoo and Yadav even intervened and tried to protect their son/brother, but in the process, they also received number of injuries, as is clear from the medical evidence produced on record. During the course of argument, the learned counsel for the appellant tried to take advantage of the fact that the deceased ought to have suffered a number of injuries, if six people had, at the same time, attacked him with lathis, but he had actually received only three injuries. Thus, the story of the prosecution was improbable.
"13. It follows therefore that the finding of the courts below that the appellant's party formed an unlawful assembly and that the appellant is constructively liable of the offences under ss. 302 and 307 IPC, in view of Section 149, is correct.
"In any event, on the finding of the court of first instance and of the High Court that both the parties had prepared themselves for a free fight and had armed themselves for that purpose, the question as to who attacks and who defends is wholly immaterial,"
and confirmed the conviction under Section 307 read with Section 149 IPC It may, however, be noted that it does not appear to have been urged in that case that each appellant could be convicted for the individual act committed by him. When it is held that the appellant's party was prepared for a fight and to have had no right of private defence, it must follow that their intention to fight and cause injuries to the other party amounted to their having a common object to commit an offence and, therefore, constituted them into an unlawful assembly. The injuries they caused to the other party are caused in furtherance of their common object. There is then no good reason why they be not held liable, constructively, for the acts of the other persons of the unlawful assembly, in circumstances which makes s. 149 IPC, applicable to them.
15. Even if the finding that there were more than five persons in the appellant's party be wrong, we are of opinion that the facts found that the appellant and his companions who were convicted had gone from the village armed and determined to fight, amply justified the conclusion that they had the common intention to attack the other party and to cause such injuries which may result in death. Darshan had two incised wounds and one punctured wound. Nand Lal had two incised wounds and one punctured wound and two abrasions. The mere fact that Kartar Singh was not connected with the dispute about the plot of land is not sufficient to hold that he could not have formed a common intention with the others, when he went with them armed. The conviction under ss. 302 and 307 read with s. 149, can be converted into one under ss. 302 and 307 read with s. 34 IPC.
16. We, therefore, see no force in this appeal and accordingly dismiss it."
(ii) that such injuries must have been caused at the time of the occurrence in question.
30. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be a sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard can be made to Rajender Singh & Ors. v. State of Bihar, 2000(2) R.C.R. (Criminal) 537 : [(2000)4 SCC 298], Ram Sunder Yadav & Ors. v. State of Bihar, 1998(4) R.C.R. (Criminal) 54 : [(1998)7 SCC 365, and Vijayee Singh v. State of U.P., 1990(2) R.C.R. (Criminal) 304 : [(1990)3 SCC 190].
31. PW4 had clearly noticed that injury on the person of the deceased, Salik Ram Yadav and Nankoo were all caused by a blunt weapon. He had specifically observed that the injuries were sufficient, in the ordinary course of time, to cause death and had, in fact, resulted in the death of the deceased.
32. The High Court and the trial court have recorded reasons for returning the concurrent finding of guilt. The learned counsel for the appellant strenuously argued that one of the accused, namely Ram Dutt, who is now dead, had in his statement under Section 313 Criminal Procedure Code, stated that the land in between the house of the parties was his and that despite his protest, Salik Ram, Siya Ram, Ram Dhiraj and Nankoo were putting earth on that land when he again objected, all of them ran after him, rounded him up at the door of Fateh Mohd. and started beating him. Thakur Prasad, cousin of Ram Dutt, came and in response, wielded the lathi in his defence. To similar effect is the statement of Thakur Prasad. In view of this stand, the other accused cannot be said to have been involved in the commission of the crime. This argument is a self- serving submission. All the accused are related to each other. Once the plea of self-defence is disbelieved, then a statement of a co-accused under Section 313 Criminal Procedure Code cannot be of any advantage to the co-accused, as the prosecution has been able to establish its case beyond any reasonable doubt. In the present case, in the chain of events, nowhere does the plea of self-defence as sought to be raised by the appellant-accused or other accused, fit in. The defence has miserably failed to prove any fact or any need for resorting to commission of the offence in self-defence. To begin with, the police had charged this accused for an offence under Section 302 read with Section 149 and 323 of the IPC. However, two of the accused were acquitted by the trial court and the remaining were convicted of an offence under the said Sections 302/34 and 323/34, IPC. The High Court acquitted all the accused of offence under Section 302/34 IPC and unfortunately, Ram Dutt died during the pendency of that appeal. Because the alleged number of accused had become less than five, nature of the offences were changed from offence under Section 149 to Section 34, IPC. In face of the acquittal of the two accused, which was not assailed by the State, it must be taken that they were not present. Then remain three accused, Thakur Dass and the present appellants. Thus, in the circumstances of the case, the possibility of presence of all other persons in the appellants' party cannot be excluded. It is also not quite possible that the accused have deposed incorrectly before the Court in regard to the number of persons and their participation. Even where there are less than five persons who are accused, but the facts and the evidence of the case is convincing as in the present case, where the accused had returned to the place of occurrence with complete preparedness and after giving lalkar had attacked the deceased there, they have to be held liable for commission of the crime (Refer : Kartar Singh v. State of Punjab, AIR 1961 SC 1787). The learned counsel for the respondent-State also relied upon the judgment in the Yunis @ Kariya v. State of M.P., 2003(1) R.C.R. (Criminal) 378 : [(2003)1 SCC 425] to contend that an overt act on the part of one of the accused is immaterial when his presence, as part of the unlawful assembly, is established. This case was for an offence under Section 302/149 IPC and, therefore, would not squarely apply to the present case as it has been held by the Court that the accused was not constituting an unlawful assembly of five or more persons. However, it cannot be ignored that the extent of participation, even in a case of common intention covered under Section 34 IPC would not depend on the extent of overt act. If all the accused have committed the offence with common intention and inflicted injuries upon the deceased in a pre-planned manner, the provisions of Section 34 would be applicable to all.
33. The learned counsel had also relied upon the judgment of this Court in Marimuthu & Ors. v. State of Tamil Nadu, 2008(2) R.C.R.(Criminal) 772 : 2008(3) R.A.J. 229 : [(2008) 3 SCC 205 : [2008(3) All India Criminal LR (S.C.)22] to contend that this was a fight at the spur of the moment and the conviction of the appellants could be converted into that under Section 304, Part I of the IPC. This judgment is distinguishable on facts and has no application to the present case. It was not a dispute which arose at the spur of the moment as the evidence clearly shows that the accused had gone again to the site in question with a common intention and with the preparedness to assault and even kill the deceased. Even the site plan, Ex.Ka9 clearly shows that all these places, i.e. the land on which the deceased was putting the earth, the house of Fateh Mohd., the house of the accused and that of the deceased were all nearby. This is even fully corroborated by the oral evidence. Thus, on the basis of the documentary and ocular evidence, we are fully satisfied that the prosecution has been able to prove its case beyond reasonable doubt and has brought home the guilt of the accused under Section 302 read with Section 34, IPC.
34. Having come to the above finding, we do not consider it necessary to dwell on the question as to what is the effect in law of dismissal of Thakur Prasad's Special Leave Petition by this Court, vide Order dated 18th August, 2006.
35. What shall be the correct interpretation of Section 34 with reference to Section 38 IPC, in view of the facts of the present case, or even otherwise, is left undecided.

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 Trial — Verdict — Evidence in Support. There is sufficient evidence to support a jury's verdict made upon conflicting evidence, when the evidence in support of the verdict is substantial, i.e., more than a mere scintilla.
 Negligence — Contributory Negligence — As Matter of Law. It is only in the clearest of cases that a court is justified in determining that contributory negligence exists as a matter of law, and a condition precedent for such a determination is a conclusion that reasonable minds could not have differed in their interpretation of the factual pattern.
 Damages — Submission to Jury — Evidence in Support. In an action for damages from personal injuries, it could not be said that it was error to submit the issue of plaintiff's loss of earnings to the jury where there was evidence justifying at least part of the verdict being based upon loss of earnings and, there being no special interrogatories relating to the various items of damage, there was no way to separate the general verdict as to the items represented.
 Evidence — Hospital Records — Limited Purpose — Cautionary Instructions. While hospital records are generally admissible under the Business Records Act, all material contained therein is not automatically made admissible; however, where counsel has permitted such records to be admitted without pointing out the portions believed objectionable so as to permit the trial court to pass on the question at that time, it is within the discretion of the trial court to give or decline to give cautionary instructions limiting the jury's consideration of the records to a particular portion or for a particular purpose.
 Negligence — Unavoidable Accident — Instructions. It is not error to refuse to give an instruction on unavoidable accident where there is no evidence tending to show that the accident was in fact unavoidable or that unusual conditions existed, since such an instruction under such circumstances would be superfluous.
See Ann. 38 A.L.R. 2d 778; Am. Jur., Hospitals and Asylums (1st ed. § 6).
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 51343, Mitchell G. Kalin, J., entered November 16, 1962. Affirmed.
Action for personal injuries. Defendants appeal from a judgment entered on a verdict in favor of the plaintiff.
A judgment was entered in the trial court upon the jury's verdict in favor of plaintiff. From that judgment, defendants appeal.
At the time of the accident in question, appellants were copartners operating a sawmill and chipping plant in Hoquiam, where logs were converted into chips for the manufacture of pulp. Respondent, as a one-man logging operator, bought stumpage, felled trees, bucked them into logs, yarded and loaded the logs on his truck, and sold and delivered them to various mills.
June 22, 1960, respondent delivered a truckload of 40 to 50 small logs, approximately 16 feet long and from 5 to 8 inches in diameter, to appellants' chipping plant, as he had done on previous occasions. The load was first scaled to determine the number of cords on the truck, then respondent backed the truck between two guide logs in front of a crane and grapple so that the load could be removed from the truck. The grapple consisted of two hooked arms that could be opened and closed around the logs by the crane operator as he removed the logs from the truck. After the truck was stopped, respondent removed the binder cables that held the load, thus leaving only the truck stakes to hold the logs. Respondent then stepped back to a position approximately 35 feet ahead, and to the left, of his truck. The crane operator took off one load of logs with the grapple, dropping two logs before they reached the stock pile next to the crane. Respondent then returned to his truck to check his binder cables because one had hung up on the load. Thereafter, he resumed his former position in front, and to the left, of the truck.
"When appellant's evidence is considered with the foregoing cases in mind, it cannot be characterized as overwhelming, but it is substantial ( i.e. more than a scintilla), and since the evidence was conflicting upon the principal issue, we think the jury could find that there existed a steering defect of which appellant should have been warned by his employer. In such a situation, once the jury has reached its verdict, any inquiry by the court is foreclosed, unless, as a matter of law, the court can say there is no competent evidence or reasonable inference therefrom to support the jury's finding in favor of the nonmoving party. See, also, Grange v. Finlay, 58 Wn.2d 528, 364 P.2d 234 (1961)."
That case involved the granting of a judgment n.o.v., but we think the same reasoning is applicable to the position taken by appellants in this case.
Respondent testified that, when the grapple picked up the third load of logs, some of the logs dropped back on the truck, and, as the grapple cleared the edge of the truck, two more logs fell and struck a small pole lying on the ground, near which he was standing; the pole flew up, struck him on the right leg, and caused him to fall. Respondent then testified that his leg was broken either when he fell or when he was struck by the pole.
The testimony of appellants' witnesses supports respondent's version of the accident in several material respects, except as to the proximate cause of respondent's broken leg. The principal conflict is what was the actual cause of respondent's broken leg. The crane operator did not notice respondent until he had finished unloading the truck. He testified that no logs fell on the left side of the truck in the area where respondent was standing. Another employee of appellants stated he did not see the accident, but, immediately thereafter, when he responded to respondent's calls, he observed a log approximately 8 inches in diameter and from 30 to 40 inches long near where respondent fell. Another employee testified that he looked up, on hearing the logs fall from the grapple, to see respondent fall backward. He did not see anything strike respondent, and later saw only a piece of lumber about 2 feet long near where respondent fell.
While the evidence supports respondent's claim that the grapple dropped some logs just prior to his injury, only he was able to supply a direct connection between the logs dropping from the grapple and his broken leg. It was for the jury to determine the credibility of the various witnesses. As stated above, we think there is sufficient evidence on the vital factual issue to support the jury's verdict.
The only expert testimony as to the proper operation of the crane and grapple was by a former safety inspector for the Department of Labor and Industries who was called by respondent and who stated that the grapple should be closed around the logs (which it was not in this instance) when a load is being moved. The crane operator testified that it would take too long to unload a truck if the grapple were to be closed completely each time it was used.
After a consideration of the record as summarized above, we are of the opinion that there was substantial evidence from which the jury could have found that the crane operator was negligent in the manner in which he unloaded the logs from the truck, and that appellants' negligence was the proximate cause of respondent's injury. Therefore, we think that the trial court did not err in denying appellants' several challenges to the sufficiency of respondent's evidence.
"Respondents have argued that the judgment of the trial court should be affirmed on the basis that Boley was `contributorily' negligent as a matter of law. This court has said many times that in only the clearest of cases is it justified in determining that contributory negligence exists as a matter of law. O'Brien v. Seattle (1958), 52 Wn.2d 543, 327 P.2d 433. A condition precedent for such a determination is a conclusion that reasonable minds could not have differed in their interpretation of the factual pattern. Owens v. Young (1961), 59 Wn.2d 30, 365 P.2d 774."
The jury was correctly instructed on both these issues, and we think that reasonable minds could differ as to these matters. This being so, this court is not warranted in holding otherwise as a matter of law.
Appellants next assign error to the trial court's denial of their motion to withdraw from the jury any consideration of loss of earnings by respondent. The stated reason for the motion was that there was not sufficient evidence to support the claim, and that, for the jury to find any amount for loss of earnings, it would have to base its findings upon pure speculation.
The jury was instructed that, in considering the amount of damages (in the event of a verdict for respondent), they should "take into consideration the nature, character and extent" of respondent's injury, "pain and suffering, if any," "permanent disability," including compensation for "medical and hospital expenses," and expenses that may be required in the future. They were also instructed that they could consider respondent's loss of earnings and impairment of earning ability, if any, as they found to be established by the evidence. They were not instructed to make any specific findings as to any such items of damage.
There is substantial evidence to support the trial court's instructing the jury as to all of the above items of damage, and the jury may well have based its verdict upon any one or all of the instructed items. Specifically, on the question of evidence to support the instruction on loss of earnings, there was testimony by respondent which, if believed by the jury, would support a verdict based upon loss of earnings. Respondent testified that he had not worked for about 2 years following the accident, and that when he did his leg continued to give him considerable trouble. A doctor testified that he was of the opinion that respondent would have more problems with the injured leg and that he would require further treatment. Respondent produced evidence of timber sales for part of a period of 2 years prior to the accident, and testified that his income for 1959 had been approximately $4,000. From this evidence the jury could conclude that respondent was entitled to at least a partial award for loss of earnings.
 Many of appellants' objections to the verdict could have been cured had appellants requested that the question of damages be submitted to the jury by special interrogatories relating to the various items. Since this was not done, it is now impossible to attempt to separate the general verdict into parts. There is sufficient evidence from which the jury could find some basis for including in its award a loss of earnings. Under these circumstances, we cannot say that the trial court erred in refusing to withdraw from the jury's consideration respondent's claimed loss of earnings. See Sherman v. Seattle, 57 Wn.2d 233, 356 P.2d 316 (1960); and Murray v. Mossman, 52 Wn.2d 885, 329 P.2d 1089 (1958).
 Next, appellants claim that the trial court erred in refusing to instruct that certain medical records could not be considered as evidence of negligence where the records purported to state how the accident happened. The records complained of were admitted in evidence without objection or comment by appellants' counsel. While the hospital records are generally admissible under the Business Records Act, all material contained therein is not automatically made admissible. Benjamin v. Havens, Inc., 60 Wn.2d 196, 373 P.2d 109 (1962); and Young v. Liddington, 50 Wn.2d 78, 309 P.2d 761 (1957). But we think counsel should have objected and pointed out the objectionable portion to afford the trial court an opportunity to pass on the question at the time the record was admitted. State v. Morphis, ante p. 260, 391 P.2d 212 (1964), and cases cited. Appellants' assignment of error in this connection is directed to the court's refusal to instruct the jury that they should not consider any statement therein as to how the accident happened. We think that it was within the trial court's discretion to give or decline to give such cautionary instruction, and there was no abuse of discretion in refusing to give the requested instruction.
 Appellants further claim as error the trial court's refusal to give a requested unavoidable accident instruction. The jury was instructed upon the issues of negligence and contributory negligence, and that an accident is an "occurrence which could either have been unavoidable or could have been caused by negligence." To give the requested instruction in a case such as this, where there is no evidence tending to show that the accident was in fact unavoidable or that unusual conditions existed, would be superfluous. Flaks v. McCurdy, ante p. 49, 390 P.2d 545 (1964); and Handler v. Osman, 60 Wn.2d 800, 376 P.2d 439 (1962). We do not think that the trial court's refusal to give the requested instruction constituted reversible error. There was no abuse of discretion in refusing to give such instruction in the light of the evidence presented in this case. Carraway v. Johnson, 63 Wn.2d 212, 386 P.2d 420 (1963); and Cooper v. Pay-N-Save Drugs, 59 Wn.2d 829, 371 P.2d 43 (1962).
We find no error of law in the respects mentioned in appellants' assignments of error. Consequently, the trial court properly denied appellants' motion for a new trial. Since, in our opinion, the record discloses no reversible error, the judgment of the trial court is affirmed.
OTT, C.J., FINLEY and HAMILTON, JJ., and LANGENBACH, J. Pro Tem., concur.

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