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July 02, 2004

Little legal lies?

We are led to believe the the courts seek out and test the truth. This is often far from the case, as anyone who has sat through a major defamation case will agree. Yet, the test of the "evidence" is much more rigorous in the Criminal Courts than in the Civil Courts, and where a "balance of probability" is acceptable in a civil case, it is "beyond reasonable doubt" in the other. Yet, semantics apart, what does this actually mean?

It has often seemed to me that the "reasonable doubt" test is little more than a "balance of probablity" in other language. Vis, the appeal of the man convicted of murdering a foster daughter six years ago, when it appears that there were and are witnesses who would have, if allowed to testify, blown the prescution case. The police now stand accused of having brought pressure to bear upon his wife to distort the truth and help to convict him - by warning her that if he was freed she could well be forced to live with a murderer! This is the sort of argument that is often used in court itself to put the frighteners on a jury and convince them that they would be releasing a violent and dangerous criminal if they acquit. It all lies not so much in what is actually said, but in how it is presented, what is presented, and how it is interpreted. And, it must be said, that it works in both directions. That, after all, is what the Barristers are paid huge sums of money to do.

Sir George Carmen was a past master at memorable one line repartee - at the end of a witrness' testimony. Thus, by summing up everything the witness had tried to say (or not been allowed by Sir George to actually get out as he/she would have liked) in one memorable line as he sat down after a lengthy cross examination of a hostile witness, he ensured that no matter how damaging the testimony had been to his case, the jury only remembered his summary. In effect, the procedure in any court is a lottery. Get the "right" evidence, a really competent Barrister and the court room becomes a playground for verbal duelists and actors who could take Oscar Awards for every performance. Justice is probably served somewhere along the way, but the rules are complex, convoluted in the extreme, understood only by the opposing legal teams and rewritten by almost every case heard.

The problem is exacerbated by the complexity of the rules binding the police investigators, the evidence gathered, and the technicalities that now surround much of the forensic materials. Few if any juries can actually understand more than half of what is said before them in any trial in which scientific, medical, engineering or legal issues are discussed. In addition police are required to meet endless "targets" for performance and clear up rates, which piles pressure on investigating officers to ensure that they secure convictions. Far from making cases "fairer" to the accused, they have made it almost impossible to convict and lead to "selective" evidence gathering in some cases, which ensures that only the evidence that supports the investigating officers hypothesis is preserved and anything else is ignored or swept away. That is not to say that the police deliberately destroy or fabricate evidence, they simply ignore the "inconvenient" and do nothing which would bring it to the attention of anyone else.

I feel very strongly that it is high time we overhauled our justice system. The rules should be simple and transparent. Investigations should be conducted with a thoroughness that tests everything, for and against any accused person, and the defence should have the same constraints as the prosecution.

There should also be stronger penalties for concealing or distorting evidence, or the bringing of false claims. Today's paper also carries a diatribe from former Minsiter of State, Harriet Harmon on the subject of rape - claiming that one in twenty women is a rape victim. Where do these figures come from and what support does she have for this? It seems to me to be another one of those government statistics that fall into the "lies, damned lies, and statistics" categories, yet she is using this to say that the law must not be changed to protect the accused in any rape trial, while the accuser remains anonymous. It is notable that no one seems to keep statistics on how many of the accusations are proved to be false, and it is worrying that many of these claims (I would NEVER say all) have proved to be malicious and have still resulted in an innocent man being destroyed socially, professionally and legally - while the accuser is never named and has the satisfaction of achieving her malicious purpose without fear of exposure.

The legal system needs to be brought back to the purpose of serving both the victim and the public. It needs less of the high flown arguments and semantics and much, much more common sense. Only when it actually reflects the feelings of the man in the street and not the legal and poliutical elites, does it deliver justice.

I will watch with interest the appeal I mentioned at the start of this treatise now in progress;, it will be interesting to see the outcome. I am also trying, despite a great deal of evidence to the contrary, to keep an open mind on the fairness and veracity of the original trial and the investigators. As they say, if you go into an investigation with a preconceived notion of who is guilty, or the cause of the event, you will see only those things that support your preconception and ignore the rest. I was once told by a mentor - "The mind is like a parachute - it works best when it is open!" I now have reason to know what he meant and hope that I am able to live up to it. I would hope too, that those on both sides of the case, are able to recognise error and find the truth when it emerges.

Justice, to be served fairly and justly, needs to be fair, open, and absolutely impartial. It is far too important to be a game between counsel, and it is far to important to be left in the hands of the social, political, and legal elites who have highjacked it. Let us hope that we can see real justice in action soon. For too long it has been overshadowed by distortions of truth, little ommissions, and sometimes outright lies.

Posted by The Gray Monk at July 2, 2004 09:53 AM


... It has often seemed to me that the "reasonable doubt" test is little more than a "balance of probablity" in other language. ...

It is supposed to be the difference between something like 98% certain and 65-70% certain, but seldom do most people bother to differentiate.

Posted by: MommaBear at July 2, 2004 11:06 AM

We are having a bit of problem in California with a Detective omitting evidence from reports for the Laci Peterson case. Linkage This could put doubt in jurors minds about the truth of the police reports.

Posted by: skipjack at July 3, 2004 05:42 AM