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Sunday, 14 May 2017

Judging the Legal System

We saw in the last post that there are techniques apparent in the legal system that might be applicable to our own everyday use.1 A supportive environment, evidence, opposing viewpoints, and reconsidering a conclusion all seem to factor into how the court system tries to establish the truth and applies it to making decisions. It might be valuable to consider how well they work.

If you aspired to becoming a member of your country’s Olympic roller-skating team (and don’t worry, I think there’s still time—I believe it’s scheduled to be considered for inclusion as an official Olympic sport right after team juggling.) (Re-reading note: my sincere apologies for my sarcasm to all roller-skating and juggling lovers. My therapist would probably say I’m embittered by my complete failure at both activities. Hard to believe, I know, but just ask my kids.) (Re-re-reading note: I don’t actually have a therapist. Perhaps I should.) Let’s start over. In your pursuit of Olympic roller-skating fame, do you believe you’d fare better if you were surrounded by people who believed in your Olympic goal and encouraged you to pursue it? It’s easy to believe that as likely, if you consider the alternative: “Cal, give it up. You’re a loser and a danger to any kids skating near you!” And thus ended my roller-skating dreams. However, I can console myself that my misfortune has served to make an important point. It’s easy to imagine that pursing a goal or—as in our case—the truth is much more readily done if those around you are respectful and supportive. Alas, in my case, I can only dream of what roller fame I might have achieved.

If you felt something thump you on the head, you would wonder what had caused it. If you noticed that no one was near you, that you were sitting under an apple tree laden with ripe fruit, and that an apple had bounced off your shoulder and to the ground immediately after your thumping, then you might reasonably conclude that your head had been hit by a falling apple. Sherlock Holmes would be proud of your deductive skills. (But he might be appalled that this was the best example of a mystery I could come up with.) In determining that an apple was the probable culprit, you considered the evidence (i.e. sitting under an apple tree, ready-to-fall apples, an apple falling to the ground), and you formed your conclusion as to what was probably true. Considering evidence is something we do naturally and frequently as we pursue the truth daily, and something we shouldn’t be surprised to find used in trials in the legal system.

In trials, however, not all pieces of evidence are created equal. As one author puts it: “The basic rule of evidence is that all evidence must be relevant to the issues in the case … ‘Relevant’ in this context means tending to prove or disprove the fact that must be determined”.2 The author’s point: The fact that you were wearing your favourite sandals when your head was struck might not be relevant. Besides relevance, there’s another possibility: “Very often evidence is conflicting—a witness for the prosecution will say one thing and a witness for the accused will say the opposite.”3 The point here is that if, upon later examination by your CSI team, pieces of tree bark were found in your hair where an apple-juice stain would have been expected, you might have to think a bit more about what thumped you. All relevant evidence needs to be considered, including those pieces that seem to conflict. (And yes, I know my insightful little apple story is being stretched a bit far.)

In actual trials, the challenges regarding evidence can be numerous: Witnesses might lie or contradict themselves; eyewitness testimony can be unreliable for numerous reasons; who and how the evidence is handled (the “chain of custody”) can be problematic; expert witnesses might not be qualified or might provide testimony that’s confusing; evidence might be only circumstantial (e.g. seeing the defendant near where a shooting occurred, and not actually seeing the him/her commit the crime).4,5 There are even more challenges than these. However, the idea of using evidence still seems appropriate, perhaps even obvious, given our daily experiences. The consideration of it by the courts (and by all of us) for establishing the truth must be done carefully to avoid erroneous conclusions.

In thinking about courts’ use of opposing lawyers to pursue truth (and then guilt or innocence) in the adversarial system, it seems as if the technique should be effective. The structure ought to ensure a useful balance in the courts overall analysis of a case, shouldn’t it? Not everyone sees it that way. In William Pizzi’s book Trials without Truth,6 he notes that, in the United States, problems arise from making the system feel like a two-sided battle. In pursuit of victory, both sides can aggressively apply to have evidence excluded from trials on the basis of technicalities, without due regard for how that injures the objective pursuit of truth. To guard against the narrowness of a two-sided battle, he points out that “In some European countries, [the courtroom] is set up with three or four tables… so that there is room for others… to participate in the trial. In some countries, an attorney for the victim is permitted to participate…on an equal basis with the prosecutor and the defense attorney.” Pizzi’s point: the competition of two opposing lawyers might override the objective pursuit of truth.

In the court system, how effective is the process for re-considering outcomes? That’s a tricky question to answer. One measure would be to look at how frequently an Appeals Court overturns a previous decision. A hint comes from a study of the results of Canada’s Supreme Court as it considered cases presented to it from lower courts during 2000-2007.7 The study shows that there were 6.5 reversals per thousand cases. That’s a rather small fraction. One also must consider that reversals can occur because of a disagreement in the interpretation of the law, and not necessarily because of an error in establishing the facts in the case. Nonetheless, it’s difficult to conclude from this statistic whether having an appeal process adds much to ensuring the truth is eventually correctly discovered. However, one could conclude that the very existence of Appeal courts suggests that governments have recognized that errors can be made and decisions should sometimes be reconsidered. That’s a worthy thought.

A recent Special Edition of Time entitled “Innocent: The Fight Against Wrongful Convictions” provides another interesting perspective.8 Its articles offer a reminder that trials have existed in (what is now) the United States for centuries, and that they included the Salem Witch Trials of 1692-93. Twenty people were executed as a result of those trials and, in some, the convictions for practising witchcraft were partly due to witnesses testifying about their communication with ghosts. Thankfully, standards for what’s admissible as evidence seem to have changed over the centuries.

Regarding more modern times, the Time articles point out how recent DNA tests have proven the innocence of many previously convicted people. Analysis has shown their original convictions were because “witnesses got things wrong. Jailhouse snitches lied. Police, prosecutors, and rogue laboratories cut corners. Defense lawyers coasted through their work.” and “People confessed to crimes they had not committed.” This 2017 Time publication says that, since 1989 in the USA, about two thousand people have had their convictions overturned, there are about three more added to that every week, and “these cases likely represent a small fraction of all innocent prisoners”.

Perhaps the bottom line is that it’s challenging to be confident that the techniques used in the legal system are completely effective for seeking the truth. Pursuing the truth in a calm, supportive environment sounds like it has good possibilities. Being open to reconsidering previous decisions also sounds like a winner. The effectiveness of using opposing lawyers in the adversarial system seems problematic because of the possibility that winning—not finding the truth—could be paramount. In general, though, we should keep in mind the principle that it’s valuable to consider different points of view. And lastly, the use of evidence to establish the truth seems solid (if it’s used carefully) in that it corresponds nicely to what we frequently do in our daily lives.

However, the number of times that legal systems seem to fail leaves a sense of doubt about their effectiveness. And that provides plenty of motivation for continuing to search for other useful ideas that can help in an ongoing quest for the truth.

It’s time for a vacation from the blogging world. Warmer weather has arrived in my part of Canada, and that means it’s time to tackle a long list of outdoor projects. That list includes some vigorous rounds of golf. (Yes: vigorous. And you’d see my point if you golfed like I do.) The list also includes intensive reading (outside in the shade) of a stack of books I seem to have accumulated. I hope it’s a lengthy summer because speed-reading isn’t among my skills. Nicely timed (or, as my family would suggest, rather frequent) naps probably don’t help my reading pace either.

I’ll be back in September. I hope you’ll be here to join me.

© Calvin J. Brown 2017
1 Brown, Calvin J., “Legal Lessons.” Tracking Truth, 7 May 2017.
2 Mewett, Alan W.; Nakatsuru, Shaun. An Introduction to the Criminal Process in Canada: Fourth Edition, Carswell Thomson Professional Publishing, Toronto, 2000, pp. 134.
3 Mewett, Alan W.; Nakatsuru, Shaun. An Introduction to the Criminal Process in Canada: Fourth Edition, Carswell Thomson Professional Publishing, Toronto, 2000, pp. 135.
4 Mewett, Alan W.; Nakatsuru, Shaun. An Introduction to the Criminal Process in Canada: Fourth Edition, Carswell Thomson Professional Publishing, Toronto, 2000, pp. 134-135,144,166-167
5 Axelrod, Alan & Antinozzi, Guy. The Complete Idiot's Guide to Criminal Investigation, Alpha, A Pearson Education Company, 2003, pp. 153,262.
6 Pizzi, William T, Trials without Truth, New York University Press, New York & London, 1999, pp. 36-37.
7 “Appealing Outcomes: A Study of the Overturn Rate of Canada’s Appellate Courts.” Osgoode Hall Law Journal, 2009, Accessed 30 Mar 2017.
8 “Innocent: The Fight Against Wrongful Convictions.” Time Special Edition, Time Inc. Books, 2017.

Sunday, 7 May 2017

Legal Lessons

Earlier, I introduced the notion of using the legal system as a potential source of techniques for finding the truth.1 From the perspective of formal interaction with the law courts, I seem to have led a distinctly uninteresting life. Consequently, I decided to supplement my experience. A few weeks ago, I wandered into the local law courts and spent several hours watching courtroom activity. Once I got through the security checks, I spent some time in several courtrooms that were open to the public. I didn’t manage to see high drama, but it was still a fascinating exercise.

Something that was evident throughout was how controlled and structured the courtrooms were. Judges and, in some circumstances, lawyers wore black robes, and anyone official who wasn’t robed was in formal business attire. All participants presented their information and reasoning calmly and respectfully. Phrases like “my learned friend” were even used to refer to the opposing lawyer (without a hint of sarcasm). (Oh, and if, like me, you’ve never heard anyone use that word while talking about you, in situations like this it’s pronounced lur-nid.) Any comments or questions by the judge were accepted and handled almost gratefully by the lawyers. Lawyers bowed toward the judge (or perhaps that was toward the court) upon entering and leaving the courtroom. It was all very structured and controlled, and that seems to be noteworthy: Truth might be pursued more successfully in a respectful environment and in the absence of chaos and emotion.

Of course, central to court discussions is always the notion of evidence. Evidence is supposed to be at the heart of how a court decides the truth about guilt and innocence. Did Joe steal his neighbour’s outdoor garbage can? Evidence that it was found in Joe’s basement full of empty beer cans could help decide. Did Josie hit a golf ball through her neighbour’s window? Evidence that she was seen by a security camera breaking into the neighbour's house to retrieve the ball could help demonstrate that.

In courtrooms, evidence comes in various types.

One type is the testimony of witnesses. Under normal circumstances, having someone testify who actually saw a crime being committed can provide quite strong evidence for deciding what actually happened. The testimony of the person accused of the crime can also be considered, if it’s provided.

For example, I’ve occasionally been accused of taking the last cookie from the jar in the kitchen. Yes, we actually have one—a replica of an old two-storey house we purchased in San Francisco many years ago. (Re-reading note: we bought the cookie jar, not the house.) Sadly, it’s not filled with cookies as often as I would like. I can almost hear the prosecution using that as possible motivation for my stealing the last cookie: “Honourable members of the jury, Mr. Brown has been known to work himself into a cookie-deprived frenzy when supplies are low…” In such a trial, someone might also testify to having seen me committing the crime. By the way, that evidence would never exist. I can be very stealthy when required. Of course, the notion of testifying against myself is absurd… unless a cookie was offered in payment (which hopefully would be entrapment or bribery or some heinous offence that would invalidate anything I said).

As another possibility, experts can provide testimony in their areas of expertise. In a trial, forensic experts can provide results from a multitude of tests (like TV’s CSI folks, although I suspect not quite as dramatic). Psychology experts might offer their views on, for example, the mental health of a defendant. I can imagine cases where firearms, accounting, or even weather experts could provide relevant testimony. In all cases, the idea is that it’s reasonable to take into account the analysis and opinions of people who possess special knowledge and have considered the particular situation.

In my riveting last-cookie example, one can imagine a CSI specialist providing a detailed description of the crumbs discovered as the result of careful analysis of my keyboard.

Physical evidence can also be presented at a trial. For a murder case, it might be a weapon found at the accused person’s home. For an embezzlement case, it might be a personal diary of how money was illicitly handled. For a last-cookie case, it might be… an empty cookie jar. You get the idea: To assist in finding the truth, it sometimes helps to personally see or examine an object that’s directly related.

In the trials I watched during my Law Courts excursion, I didn’t see many of these types of evidence being presented—the cases simply weren’t at that stage. However, there were other noteworthy techniques. One was that the opposing lawyers carefully presented their points of view to the judge. They cited established facts and tried to persuade the judge (or in one case, three judges) how those facts should be viewed to favour their side. As a general example, a gun used in a murder that was discovered in a defendant’s home could be evidence that the defendant is guilty, or it could be evidence that someone is framing him. Cookie crumbs in a keyboard could be from some past transgression and not the one currently being considered. In any case, using the evidence as a basis for considering multiple points of view is an important technique, both in trials and elsewhere.

There’s one more technique worthy of mention. One of the cases I watched was in the Court of Appeals. Its equivalent exists in many other jurisdictions. The point of such a court is to provide a mechanism for re-examining aspects of a case in which a judgement has already been rendered. It provides an opportunity to formally reconsider a case, and also provides a hint at another technique that could be important in our daily lives.

Fostering and using respectful environments, examining various kinds of evidence, considering opposing points of view, and revisiting previous conclusions are all techniques that are used in legal systems for establishing the truth and drawing conclusions. They also all provide food for thought in our quest for techniques we can personally employ in our daily lives. However, before we draw our own conclusions, we should consider how effective these techniques are.

That’s for next time.

© Calvin J. Brown 2017
1 “Legal Truth.” Tracking Truth, 30 Apr 2017.