Saturday, July 17, 2010

What is a criminal trial?

Many people have asked me many things about criminal trials. Why was the accused acquitted (found not guilty) ? Is it not clear that he is guilty? Why did not the Judge accept that particular evidence and so on? Judge MUHAMAD KAMIL AWANG J has done a helpful and interesting observation on what is a criminal trial and the principles at play in the case of Masri Tan Sri Dato' Mohamad & Anor v. Public Prosecutor
[1998] 1 CLJ SUPP 270] as follows:

"What is a criminal trial? And how does it differ from a historical or scientific inquiry? At a research, at Harvard University it discloses that the goal of the historian and scientist, at least in theory is the uncovering or discovery of truth. The historian seeks to determine what actually happened in the recent or distant past by interviewing witnesses, examining documents, and piecing together fragmentary record. The paleontologist searches for even more distant truths by analyzing fossils, geological shifts, dust and DNA. Since what's past is prologue, for both the historian and the scientist, efforts are often made to extrapolate from what did occur to what will occur, and generalization - historical or scientific rules - are proposed and tested.

Although there are ethical limits on historical or scientific inquiry, the ultimate test of a given result in these disciplines is its truth or falsity. Put another way, there are no "exclusionary rules" in history or science, as there are in law. Historical and scientific inquiry is supposed to be neutral as to truth that is uncovered. Finally, all "truths" discovered by science or history are always subject to reconsideration based on new evidence. There are no prohibitions against "double jeopardy". Nor is there any deference to consideration of "finality"; nor are statutes of limitations. In summary, the historical and scientific inquiry is basically a search for objective truth. Perhaps it is not always an untrammeled search for truth. Perhaps the end of truth do not justify all ignoble means. But the goal is clear: objective truths as validated by accepted, verifiable, and, if possible, replicable historical and scientific tests.

A criminal trial is quite different in several important respects. Truth, one important goal of the criminal trial, is not its only goal. If it were, judges would not instruct jurors to acquit a defendant whom they believe "probably" did it, as they are supposed to do in criminal cases. The requirement is that guilt must be "proved beyond a reasonable doubt." But that is inconsistent with the quest for objective truth, because it explicitly refers one kind of truth to another. The preferred truth is that the defendant did not do it; we demand that the jurors err on the side of that truth, even in cases where it is probable that he did do it. Justice John Harlan said in the 1970 Supreme Court decision:

In Re Winshop 397 US 358 , 372 [1970] it was said that "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value that it is far worse to convict an innocent man than to let a guilty man go free." The sentiments are traceable to the nineteenth century, to William Blackstone's well-known maxim that under the common law "it is better that ten guilty persons escape, than that one innocent person suffer". (4 Blackstone, Commentaries 358).

In a criminal trial, we are generally dealing with a decision that must be made under conditions of certainty. The law is a relatively subtle instrument capable of making refined distinction between the standard of proof required to deprive a person of his liberty, on the one hand, and to deprive him of money, on the other hand. As Justice Harlan, further commented in his Winshop opinion:

If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond reasonable doubt there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent.

The burden of proof in a criminal case is "beyond a reasonable doubt", while the burden of proof in a civil case is "by a mere preponderance of the evidence". Simply put, this means that it takes more and better proof to convict a criminal defendant of a crime than to hold a civil defendant liable for monetary damages. How much more or how much better are not subject to precise qualification. We know what proof by a preponderance is supposed to mean. Even in a close case, the side that is more persuasive wins. In civil cases, truth is supposed to prevail, without the law's thumb on either side of the scales of justice.

In addition to the requirement of proof beyond a reasonable doubt in criminal cases, there are numerous other barriers to absolute truth that have been deliberately built in to the process to serve other functions. Some of these barriers to absolute truth that have been deliberately built in to the criminal process to serve other functions. Some of these barriers can be justified as perhaps contributing to the search for truth in the long run, which probably sacrificing truth in a particular case. The exclusion from evidence of a coerced confession may produce falsity in a case where confession, though coerced, is nonetheless true and can be independently corroborated.

We have opted for an exclusionary rule which the coerced confession and all its fruits are excluded, even if the fruits prove the truthfulness of the confession. Such a broad exclusionary rule is not designed to serve the goal of truth, either long or short term. It is also intended to serve an important set of values entirely unrelated to truth. Those include privacy (or, in the eighteenth-century language of the Fourth Amendment, "security"), freedom from unreasonable governmental intrusion, and the integrity of the mind and body. These values were regarded by those who introduced the "exclusionary rule" as being more important, at least on occasion, than truth. The exclusionary rule explicitly recognises that the guilty will sometimes have to be freed in order to send a message to the police and prosecutors that the noble end of seeking the truth does not justify ignoble means such as unreasonable searches or coerced confessions.

Our system of justice thus reflects a balance among often inconsistent goals, which include truth, privacy, fairness, finality and equality".

Peace !

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