Wednesday, 16 March 2011

Criminal Evidence – Does it really paint a clear picture?

At the lecture last night Dr. Piyel Haldar gave a really interesting talk about criminal evidence, and what is involved. I have often thought about whether there is actually an accurate representation of what happened when so much evidence is actually held back. This, I thought, fed back into the who issue of the Paradox of the Criminal Court.

Criminal Evidence, as defined in the lecture is primarily concerned with the manner in which the court can establish either the guilt or non-guilt of the defendant, which brings about a slight problem as the purpose of the trial is not to establish the innocence of the defendant, but rather what part the defendant actually played in the event. Which is not to find out exactly what happened, but rather just to establish its relevance to this particular defendant.

This made me think about whether this is actually going to paint a clear picture of the event. How does judgement actually come about when there is not a clear picture of what happened? The lecturer referred to the Argentinian poet Jorge Luis Borges who wrote a short story on a King who sent one of his subjects to draw a map of his kingdom. The subject came back with a map with all the main roads and landmarks, this was not good enough for the king, and so he went out again, returning with another fuller version including all the hills and valleys. Again this was not accurate enough for the king, so the subject went away again, this continued, until the subject covered the whole land in paper to draw an exact map of his kingdom. To which the king said, well, it’s still not an exact replica of my kingdom, as it is still just a map. This is what is said of evidence, it is used to illustrate the probable version of events.

Ideas of proof in medieval times were determined by divine forces i.e. to know whether a witch was truly a witch, she would have lead/bricks tied to her feet and thrown into a body of water, if she sunk, she was not a witch in the first place, if she floated, she was a witch and was to be burned at the stake. There is a definitive voice that determines judgement. Now we have a judgement of matter. Man isn’t God, so there is only a probabilistic version of events.

Exclusionary rules means that the evidence that is admitted, has to be deemed relevant. Some items of evidence will be left out or considered irrelevant, so there will not be an exact picture of what happened Often relevant material may be excluded because of reasons such as public policy etc. Which brings me back to my original quandary, with all this evidence left out, how can a true judgement be brought on the defendant? I don’t mean to go to the extreme of the story told by Jorge Luis Borges, but surely if the evidence was there, it is evidence, irrelevant or not, should they not be included to gain a better picture of what happened?

As always, comments welcome.. till next time.


Hadleigh said...

I didn't realise so much may be left out. We are always told to share information no matter our small it is or seems as it will paint a better picture yet they don't use this in court or to argue a case

The Gray Monk said...

Yes, evidence is evidence and its admissibility or not is governed by the Police and Criminal Evidence Act, the Criminal Justice Act and a more recent one that amends both. PACE Schedules set out what is admitted and what is disclosable and, in essence, everything is disclosable to the defence and to the prosecution - even the notes made on the back of the proverbial fag packet.

The prosecution will, in the first instance, make the selection, but this can and will be challenged by the defence if they consider the selection prejudices their case. It is finally up to the judge to decide what is admissible and, as someone who has had to give evidence, I can say that it can be a bit nervewracking at times. I'd recommend the "Blackstones" book on Evidence, the title escapes me at present, but it explains all these "rules" rather well.

The court probably doesn't want to know the whole picture, it is really only interested in the part played by the accused and assumes that the Jurors will have seen enough in the news to be able to fill in the gaps. Personally I am not a believer in 'Trial by Jury' and prefer the continental system of a panel of trained judges supported by a pair of lay persons selected by ballot from the electoral rolls and who must pass certain criteria. They also have the victim (or a relative) represented by a Barrister which means the victim is taken into account - a feature notably absent in the UK.

Nothing in 'evidence' is 'irrelevant' but it may not inform a court of the matters then under consideration.

I have to say though, that a barrister friend of mine says (privately of course) that if you are looking for 'justice' you are unlikely to find it in a courtroom as that is a rather specialised 'game' between barristers and lawyers based on point scoring by calling into question the other sides witnesses and evidence.