Over at Larva Rodeo a few days ago, “Atticus” forensically dissected a typically silly and dishonest Miranda Devine column. Devine bemoaned a recent NSW Court of Appeal decision in which a DPP prosecutor was heavily criticised. Prosecutors shouldn’t have to be so dispassionate and even-handed, Devine argues. They should fight for the victim instead of having “one hand tied behind their backs” while defence lawyers are “free to use emotion and opinion and the power of their personalities to sway a jury”.
In fact, prosecutors under a common law system can vigorously seek a conviction to a quite considerable extent, as the Court of Appeal discussed in the case in question ( Livermore v R). What they can’t do is engage in outright abuse of their opponent and even their own witnesses, or present propositions to the jury that have no foundation in the evidence (which is what the prosecutor did in Livermore). Nevertheless there are some restrictions on prosecutors that don’t apply to defence lawyers, and commenter JW eloquently explained the policy reasons for them:
It’s probably not surprising that a lot of people have a hard time understanding why this should be.
The point that Miranda misses is that, in order for it to be a fair fight between state and defendant, the prosecution has to have one hand tied behind its back. Not only does the prosecution have all the resources of the state behind it, but the jury after having seen photos (for example) of the corpse of the murdered child – is going to look for someone to punish. There is a natural, human inclination to want to see the crime avenged. And it is only human to want to take out that vengeance on the person who has been arrested and charged with the crime and now sits in the dock.
Further, there is already a natural inclination for juries to think, “well they wouldn’t have arrested him if he wasn’t guilty”. So the defendant starts off at a natural disadvantage; the restrictions on the prosecution only serve to even the playing field.
If the state was allowed to use anything other than purely dispassionate argument, based solely on the facts, then getting convictions would be like shooting fish in the proverbial barrel.
This raises an important more general issue that merits examination. As JW explained, the primary reason for the restrictive rules imposed on prosecutors in a common law system, and for that matter the common law’s extraordinarily strict, complex and exclusionary rules of evidence, is in order to reduce the prospect of a lay jury reaching a perverse verdict. Journalist Evan Whitton focussed on the issue a few years ago in his book The Cartel: Lawyers and Their Nine Magic Tricks, but charted a populist course of blaming the complexity of the law on the corruption and naked self-interest of the lawyerly caste in England:
A tiny cartel of lawyers and amateur judges, who were mainly interested in money and status, effectively decided in the 13th century that truth does not matter, and turned the law into a game late in the 18th century by inventing a truth-obscuring adversary system, by giving lawyers control of civil and criminal trials, and by concocting a series of truth-defeating rules for concealing relevant evidence.
Far be it from me to attempt to deny the self-interestedness of the legal profession (despite being a member of it). However, surely a far more plausible reason for both the rules of evidence and restrictions on prosecutorial conduct is the one JW advances. The jury was enshrined in English law by Magna Carta as a fundamental protection against a potentially oppressive Crown. Article 39 reads:
No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.
However, English lawyers gradually discovered, by the standard pragmatic trial and error methods of the common law, that juries were easily capable of being manipulated and therefore of rendering a capricious and unjust verdict. Just ask Lindy Chamberlain or the family of OJ Simpson’s murdered wife. In essence, common lawyers learned in the school of hard knocks what modern cognitive science is only now discovering through research: that humans mostly make moral decisions by biologically “hard-wired” moral intuitions, and that those decisions can be manipulated by the way a moral question is “framed” and by strategic application of knowledge of the way we use heuristics in reaching such decisions. The jury is effectively expected to judge an accused person’s guilt or innocence by applying the community’s moral intuitions to the evidence in the case, rather than the intuitions of an excessively powerful monarch/executive government. The combination of rules of evidence and behavioural constraints on prosecutors aim at reducing the risk of those moral intuitions being subverted and manipulated. To put it another way, the jury delivers the intuitive component of Aristotelian ethics while the rules of evidence and prosecutorial behavioural constraints are meant to add the sound logical reasoning that Aristotle says is necessary (along with living a virtuous life) for the achievement of practical wisdom.
But how often do juries get it wrong (either by convicting an innocent person or acquitting a guilty one)? And is there any better system? Evan Whitton seemingly has no difficulty in fearlessly answering both those questions. He asserts that the French/continental system, where specially trained judges, sometimes assisted by lay jurors, determine guilt or innocence, and rules of evidence are consequently much less complex, is vastly superior to the common law. Whitton claims that continental systems “put away 90 per cent of known serious criminals” while in the English system “80 per cent of known serious criminals get off, but one per cent of prisoners are innocent”. Manifestly there is no way of establishing any such claims, and the fact that crime rates in common law countries are mostly not dramatically different from those in Europe rather suggests it’s nonsense. As French judge Jean-Marc Baissus observed in a 1998 article which explored Whitton’s arguments and gave an accessible outline of the continental system:
In the absence of reliable, comparable statistical data I will not venture to give an opinion on Mr. Whitton’s claims … I will simply note that murder rates (the type of offence where the proportion of unsolved cases is probably the lowest) are equivalent throughout Western Europe, or that the rate of imprisonment hovers everywhere around 90 detainees per 100,000 population.
It’s a great shame that Whitton so discredited himself with such absurdly hyperbolic claims, because there really are some virtues to the continental system that merit serious discussion. For example, entrusting the finding of guilt or innocence to a specially trained judge whose job is to discover the truth, rather than just to referee a contest between prosecution and defence lawyers, allows much less complex rules of evidence (and hence probably less prospect of expensive and traumatic reversals on appeal). As Baissus explains:
In contrast to civil law (see below), the continental penal law of evidence is not regulated in penal matters. There are no special rules on the way evidence may be collected or what should qualify as evidence in court. It is a logical consequence of the duty to search for the material truth handed over to a qualified and impartial judge. In penal matters the facts may be proven in any way, and the judge accepts any element provided it has been lawfully obtained and the accused has had an opportunity to discuss it in court. Hearsay is not as such deemed inadmissible.
On the other hand, while in common law countries the great majority of criminal cases are dealt with in lower courts by guilty plea, apparently continental systems (on which I’m certainly not an expert) don’t generally allow for any such thing:
For instance, a confession is a means of evidence similar in weight to another. It does not dispense the prosecution from the burden of proving the offence, just as it is not binding on the judge. Thus there is no “plea” of guilty or not guilty in continental criminal procedure, nor any consequence thereof on the rest of the proceedings. Generally speaking there is no room for plea-bargaining in the American sense. In fact the Dutch code expressly prohibits to convict the accused on the sole basis of a confession.
While I’m sure that, as Baissus suggests, there are occasional offenders accused of minor crimes in common law countries like Australia who plead guilty when they’re really not merely because of the expense of contesting the charges, people accused of serious crimes in Australia are entitled as of right to free legal representation when they can’t afford it themselves, under the High Court’s Dietrich principle. It seems dreadfully wasteful and economically inefficient to force all matters to trial even where the alleged offender wants to plead guilty. Nevertheless, I can’t see any reason in principle why Australia could not adopt a quasi-continental system of criminal trial by a specially trained judge assisted by some lay jurors, but preserve the availability of a guilty plea along with modest sentencing incentives to encourage such pleas.
There are numerous other advantages to the continental system. It gives a real role to the victim, for example, without running the risk of a trial process driven by vengeance. And complex questions of expert evidence aren’t determined by lay juries who have no sensible means of choosing which expert to believe, nor is the court forced to rely on partisan experts selected by the parties for their own advantage. As Baissus observes:
In continental procedure, experts are court-appointed. They share the same duty of impartiality as the judge. Their findings are for the court and not dictated by the wish to support one party’s position. The reputation of an expert is not based on the number of cases he has helped “win”. And certainly, it would be a disciplinary misconduct if he were to behave in a partial manner. Experts are not encouraged to make a given finding but are selected on their reliability, i.e. their acceptance as competent and independent professionals by all opposing parties. Specially, it cannot be said that the prosecution has an undue advantage when confronted with an indigent party.
An added advantage is that the cost of expert opinion is much less in continental procedure. They are paid out of State funds, which are usually not very generous, or, in civil cases, by the losing party. But their remuneration is under the court’s supervision, which ensures they remain reasonable. In fact, experts are often encouraged not to make their major source of income from testifying in court, to preserve their independence and check their proficiency through successful private practice. One of the major advantages continental experts derive from their judicial work is to be able to publicize the tag “court-appointed expert” in their private practice. Private clients have a measure of quality assurance, whilst the courts hold on to a useful stick to keep experts in line.
What a pity that Evan Whitton has so discredited the concept of a continental-style criminal justice system by carrying on like a pork chop about the venality of lawyers. I wonder if it’s too late for a serious discussion here?