Trying Trials

This conclusion, that lawyers can affect witnesses' evidence, may shock some. But should it? Provided that the lawyer is not breaching a rule of law, evidence or professional etiquette, he or she should not be criticised. Lawyers are operating a system, not just in the manner that they are entitled to do, but as they should if they are to do the best for their clients. Perhaps they ought to be more critical and questioning of the system they operate and the rules that they abide by. But how many occupations are keen to undertake a radical review of how they operate, particularly one that is beloved of and regularly reinforced by media examples which draw upon its potential for excitement and truth finding? Lawyers would stress that they do not make the decisions. They present—better understood as 're-present'—the evidence to the courts. It is the court, the judge or jury, which makes the decision. They, the lawyers, must do their job as well as they can if they are to help the judge or jury to do their job best.

We might think that the key criteria for judging a trial system are obvious. For a criminal trial they are to ensure that the guilty are convicted and the innocent acquitted. But that is not entirely correct (Walker, 2001). It is a desirable by-product rather than system goal. First, trials can be decided upon the burden and onus of proof rather than determination of guilt or innocence. A finding of 'not guilty' is not a finding of innocence, although that may appear appropriate and is often interpreted as such. All a judge or jury may be deciding is that there is insufficient proof, that there is a reasonable doubt. They may have believed the defendant to be guilty, but have had to accept that there is a reasonable doubt in the evidence. That is perfectly proper, under our system. Second, the focus is on individual cases and there is nobody, no agency, charged with developing a system perspective. Third, even if there was we have no— perfect—system forjudging trials. They are self-validating. Who tries trials?

A court may find and declare someone to be guilty, or not guilty. For legal and practical purposes they are now, guilty or not guilty. There is, or is not, authority for punishing him or her. And, in practice, most of us believe, or assume, that the individual is, or (less frequently) is not, guilty. But we do not know, and cannot know for certain, that the court's conclusion is correct. Action may be taken, for example fresh evidence found, leading to a review of a conviction, although not of an acquittal. In England and Wales the Criminal Cases Review Commission may undertake a review of a case and refer it to the Court of Appeal for reconsideration. That may lead to a reversal of that conviction. Such a reversal does not prove innocence, although that conclusion often seems to be the obvious inference. It only suggests that the defendant should not have been convicted, or should no longer be regarded as guilty on the requirement of proof of guilt beyond reasonable doubt. A finding of not guilty is not a finding of innocence. We cannot say that a finding of wrongful conviction provides data about false positive (incorrect guilty) decisions, unless we qualify it as 'not guilty according to legal standard of proof'. By definition, because we have chosen trials as our fact-finding system, we do not have another system to test, or to try, them by.

Examination in court, by questions, is part of a bigger system. It would be inappropriate to hurl opprobrium at just this part whenever it may be a necessary consequence of other parts of the system. For example, we allow lawyers a great deal of latitude in what questions, and how they may ask them in court. We can then begin to believe that, if we were on trial, our lawyer could do his or her best for us. We would have a champion unconstrained by petty restrictions. We can also begin to believe that everything thought to be relevant would get aired in our case, and by extension, is aired in other cases. There is something reassuring, as well as exciting and dramatic, about the notion of courts as contests. That that may conflict with their fact and truth-finding roles, and certainly does not fit the daily monotony of most courts, is overlooked. When we think of trials we focus on the atypical which is the contested trial. When we review the criminal justice system we again tend to focus on the atypical case, the expensive, long, jury trial (Auld, 2001).

It would be unrealistic to assume that in inquisitorial justice systems witnesses' words would reach the ears of decision makers, usually judges, in any purer state. Their statements have been paraphrased by officials into written statements to enter in a case file (Pakes and McKenzie, forthcoming). Police officers or investigative judges often write down their statements in summary, and in doing so they translate it into 'proper terms' so as to facilitate its process through the system. In the Netherlands, for instance, the rule is that such summary statements are to be recorded in the suspect's or witness's own words. The practice, however, is quite different. Information undergoes what Den Boer (1990) calls 'narrative transformations', so as to fit the legal purpose of the official recording the information.

A typical inquisitorial ploy would be to record the following in such a statement.

'I tell you that I was not in the pub when the fight broke out. You however tell me that you have obtained various witness statements to the effect that I was present in said pub kicking person X several times, or least once or at least attempting to kick person X. I do not know why those people would say that. I have no enemies and cannot imagine people lying about me.'

In this way, the recorder clearly communicates the degree of credibility he or she wants the subsequent decision-makers to assign to this statement.

The Auld report proposes changes to trial proceedings, although these might be regarded as minor adjustments to curtail the impact of persuasion in the courtroom. They include provision for the judge to give to the jury an objective summary of the case and the questions they are there to decide. This is to be supported with a written aide-memoire. Counsel for both parties should also submit information to the jury, and judge, in writing. It should identify: the nature of the charges; a brief narrative including the agreed evidence and the admissions of either side, the matters of fact disputed and, with no, or minimal, reference to the law, a list of the likely questions for their decision (Auld, ch. 11, para. 22).

If jurors are better prepared for what is to come, they might be better equipped to pay attention to the evidence and less to persuasion or other 'communication mischief', a term coined by Walker (1993). But the remedies proposed seem to lie in the preparation of those who enter the arena of an adversarial trial. Jurors could be informed better to assist their decision-making as Auld is suggesting. Advocates and judges today receive better training than they have in the past. Information is now often given to vulnerable witness such as children (Plotnikoff and Woolfson, 1995) for whom protective measures such as live links and video-recorded evidence are now in place (see Davies and Noon, 1991: Davies et al., 1995). However the rules of the game, once the trial begins, do not seem to be open for change. What is changing is the preparation and training of those who play in it.

In the absence of a method for being able to know how well trials perform, as determinants of guilt and non-guilt, we should focus upon auditing both the parts as well as their integration into a whole system. We could examine the effectiveness of parts, for example the potential of our current systems of questioning to ensure truthful and accurate evidence. Then we could examine the integration of the parts into the whole. Additionally, and/or alternatively, we might develop ways in which the criminal justice system receives feedback. Without feedback an organisation, or system, cannot learn or develop organically. It does not make provision for automatic adaptation, change and improvement (Flood and Jackson, 1991). Indeed, without this provision, its adherents are liable to perceive criticism and examples of error as challenges from the outside. It increasingly becomes a 'closed' system with regard to, and separate from, the rest of the world. If we were to adopt this perspective then we might begin an audit of the quality of the parts of the system. Although we still have difficult, and basic, decisions to face about what are the goals of our legal system.

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