Multiple witnesses offer multiple opportunities for inconsistencies, for the simple reason that a group of honest witnesses giving an honest account of something that happened will all naturally diverge in their perceptions and recollections. There will always be something for the advocate to pluck out as ‘proof’ of unreliability. Mysha and Tamara both said that they had first discussed the abuse with each other two years ago, around six months before they decided to go to the police. When, inevitably, the evidence of these two poorly educated, psychologically vulnerable women diverged on the exact words used and precise dates, times and movements of that day, this, we crowed, shows that they’re making it up. When they differed in their evidence, it was because they were tripping up in their own lies. When they were eerily similar in what they said, it was because they were in cahoots.
When you can add to your default armoury some concrete examples of unreliability and lies, as we had in our schedule, you’ve got a day’s worth of brickbats you can throw in as well. Particularly if, as with Tamara, you get caught out lying in your evidence. She had told a counsellor, a few years ago, that she was going to ‘get my own back big time’ on Jay. The context was unclear, but it was established from the records, and the counsellor himself, that Tamara had used those words. The prosecution agreed that this was so. This fit neatly with our case theory of malicious complaint, although in deploying it we were taking the risk that the prosecution would spin it as the natural rage of a girl whose childhood was stolen by her predatory father. Tamara though, rather than offering this context when confronted with the comment in cross-examination, denied making it at all. She lied. And, George was able to put to her – and to the jury in his closing speech – this was the lie that gave the lie to everything else. It was but the tip of the iceberg. One proven lie – a lie on oath, members of the jury – that casts into question everything else she has told you. Remember, when you consider her tear-streaked video interview that she gave to the police (that being the way that evidence-in-chief is given in sex cases), and ponder the hysterics she ‘convincingly’ exhibited when challenged on her evidence, that this girl is a proven liar. And please, ladies and gentlemen, assess all of her evidence with that in mind.
By the end of the witness’ evidence, if cross-examination has been successful, the jury should be questioning everything about the witness other than what you want them to accept. If enough damage has been done to the inherent credibility of the witness, the jury may be distracted from what, on its face, is an internally coherent and utterly compelling portrait of a real-life event.
Excluding Evidence
Of course, you can altogether avoid having to challenge or cast a favourable gloss over awkward prosecution evidence if that evidence doesn’t get before the jury in the first place. One of the unique features distinguishing common-law adversarialism from the Continental inquisitorial procedure is how much energy goes into ensuring that the fact-finding tribunal is not in possession of all the facts.
Rules of evidence in criminal proceedings are horrendously complex. As with the adversarial format itself, rules of evidence emerged piecemeal from the eighteenth century as barristers, restricted to assisting the courts on ‘matters of law’, enlarged their roles by finding ever new and exotic ways to push the boundaries. At their heart, rules of evidence aim to confine what is put before the jury (or magistrates) to that which is relevant to the issues. Nothing is gained by taking up court time clouding the jury’s task with irrelevant data. Further to that, though, the law has developed to act as a ‘quality filter’, and to excise evidence which may be relevant, but with which it is deemed juries ought not to be trusted.
Some of these are designed to eliminate evidence that by its nature is of lower quality, such as the rule against hearsay. Put simply, assertions made out of court are not admissible as evidence of their truth except in tightly defined circumstances. And so, if Joe tells a police officer that he saw Jim stab Fred, Joe would have to come to court and give that evidence on oath. Neither his witness statement, nor the evidence of the police officer as to what Joe said, would be admissible instead. The rationale is that the source of hearsay evidence cannot be directly challenged, and as ‘second hand’ evidence is inherently more likely to be unreliable. But it is not always so. And the exclusionary rule means that evidence which is potentially relevant, and which could be entirely reliable, might be withheld.
Other exclusionary rules are ostensibly aimed at avoiding undue prejudice to the parties. An obvious example is the law on bad character. The starting point is that evidence of a defendant’s previous ‘bad character’ – which doesn’t just include convictions, but any conduct of a ‘reprehensible’ nature – is inadmissible. The jury ordinarily will hear nothing about it. A fun part of a trial arrives immediately following a guilty verdict, when the prosecutor will rise to their feet and, in a theatrical display of ‘Here’s What We Didn’t Tell You’, read out to the agape jury the defendant’s impressive list of previous convictions. Again, the reason for this appears sound: there is a risk that a jury may attach undue prominence to someone’s previous roguery with the result that they fail to properly scrutinize the evidence for the present allegation. The same applies to the bad character of non-defendants. My schedule of Mysha and Tamara’s historical misdeeds was not automatically admissible; much of my effort went unrewarded, as the judge properly applied the strict legal test for allowing the complainants to be cross-examined about their bad character, and many instances of the more minor or unverifiable instances of childhood misbehaviour were ruled out.
Other relevant evidence, which is neither hearsay nor bad character, may be excluded at the judge’s discretion if it is deemed to ‘have such an adverse effect on the fairness of proceedings’ that the court ought not to allow it.2 Such applications are often made where, for example, there has been a breach of the codes of practice that govern police investigations. If an identification procedure does not comply with the applicable code of practice, the positive identification of the suspect by an eyewitness may be excluded. Partly this is to prevent low-quality or contaminated evidence from polluting the purity of what the jury hear, partly public policy dictates that it is important that there are meaningful consequences for the prosecuting authorities breaking law and procedural codes.
And so, rather than placing all relevant evidence before the jury with appropriate warnings and directions as to the caution with which they might want to approach parts of it, we instead legally purify the evidence out of what can only be a fundamental mistrust in the ability of juries to consume the raw produce appropriately. This is a paradox at the heart of the jury system. It is not for those twelve to decide whether evidence is reliable, or whether it is fair to take it into account. We fear the jury’s human weaknesses, while simultaneously lauding its innate and unimpeachable sense of fairness. Is this tenable? Or does this all add up to a picture of incomplete information being put before an admittedly irrational tribunal?
The filtration of evidence in adversarialism isn’t limited to what is excluded. Because an application to exclude presumes that the relevant evidence has been obtained. Often it hasn’t. The presentation of evidence is for the parties, rather than the court, and anything that is not supplied cannot be considered. The oath that jurors swear is to decide cases on the evidence. They must not conduct extra-curricular research online, or speculate about what other evidence might exist. Their tests must be conducted using only the tools handed to them in the courtroom laboratory. If the prosecution has missed or forgotten something, it remains forever buried. When ploughing through the unused material, I noticed a social worker’s notes from 1993, recording Mysha as suggesting that her dad was doing things at home that made her uncomfortable. The prosecution had missed this helpful evidence of contemporaneous complaint. They had not spotted it, not pursued it, and not spoken to the social worker to get further detail. And, it being not in the least helpful to our case, this valuable comment, no dou
bt long-forgotten by Mysha, was never brought to the jury’s attention.
Tactical manoeuvres by the parties further limit the jury’s access to relevant information. A key question of an opposing witness may deliberately not be asked by a seasoned pro, aware that her case is stronger without Schrödinger’s cat’s welfare being confirmed. The evidence called by each side is selective and partial. Neither side is going to knowingly call a witness who will torpedo their own case. Sometimes, when defending, this means not calling someone who the jury may be very keen to hear from. Such as Jay’s wife, Farah. She, standing by her man, was keen to give evidence in his defence, to say how she had seen no signs of abuse in the family home, and what awful, mendacious children she had raised. But no way was George or I putting her in the witness box and gifting the prosecution the opportunity to demonstrate to the jury quite how ineffective a protector the girls’ mother was. How easily she would have been manipulated by Jay. How plentiful were the opportunities for him to do to those children whatever he damn well pleased.
And sometimes tactics demand that the defendant himself exercise his right to silence and not give evidence. Counter-intuitive though it may sound, there are some trials – particularly where you fear a client may blunder his way to convicting himself in the witness box – where you advise that he remain silent and hope that enough damage has been done to the prosecution case in cross-examination for the jury not to be sure of guilt. Of course they’ll think he’s possibly or probably guilty. But if the prosecution witnesses have been poor, it is possible to persuade a jury that, even without the defendant’s account on oath, they cannot be sure beyond reasonable doubt that he is guilty. The risk however is that the jurors, as they are entitled to do, draw an inference that is adverse against your client from his silence, and proceed to convict him. In such cases, it can be difficult, I have found, to shake the feeling that you as the advising advocate are in some way to blame. That, even if the advice you gave was spot on, your client is being punished for your gamble. The narrative that you fear – and to which they, if innocent, will forever cling – is of a blameless person unjustly deprived of their freedom because they were persuaded by their barrister to play the game and roll the dice, rather than simply tell the truth.
Inquisitorialism: A Search for Truth?
The word ‘game’ hangs in the air. Because that is often what adversarialism amounts to. It does not seek to take a cool, impartial look at all available evidence. It does not calmly invite differing interpretations of a comprehensive fact-gathering exercise. The police, conscious of the political imperative to achieve convictions, investigate alone, under their own steam. They pass what they find to the CPS, which selects the evidence that points towards guilt. The defence try to exclude parts of that evidence, throw in some of their own, equally partial, while lobbing smoke bombs into the arena in the hope that some may damage the prosecution witnesses, or at the very least distract the jury. Who, let us not forget, we cannot trust in possession of the full facts, lest they misapply them or otherwise disgrace themselves.
It is difficult to see how, in that framework, truth is ever supposed to emerge. Particularly in contrast to the alternative, European model – inquisitorialism. Which, whatever variant of system you alight upon, is premised on and marketed as a neutral search for objective truth.
There are many and varied inquisitorial systems, but it is worth a whistlestop tour of some of the main common features. The headline is that rather than equip two adversaries with the means to present their own partial evidence to an independent fact finder, all roles are vested in the state.
Typically, the criminal investigation is carried out by judicial police officers, under the supervision of the prosecutor, who decides whether to pursue the matter to a trial. Evidence is gathered both for and against the accused in a disinterested and objective manner, and the investigation and its findings are documented in a file, or dossier. The prosecutor’s objective is not to obtain a conviction – unlike the CPS, under political pressure to deliver acceptable, although ever-undefined, conviction rates: – her public duty is to search for and uncover the truth. In some jurisdictions, the prosecutor is supplanted by an investigating magistrate who takes responsibility for the investigation. Witnesses will be examined and their testimony recorded in the investigative stage, with all evidence placed in the dossier.
The defence will be entitled to inspect the dossier before trial and offer representations on any further investigation that should be instigated. Once the prosecutor or investigating magistrate is satisfied that all necessary investigative measures have been exhausted, the completed dossier, containing all the evidence, is put before the trial court. This is usually a single judge, or a mixed panel of professional judges and laypersons.
Trial itself takes on a very different, almost anti-climactic feel. And there will be a trial. Guilty pleas and plea bargains do not exist, capable as they are of obscuring truth. While a defendant can admit his misdeeds in evidence, the court must still establish exactly what took place. The trial is judge-led. In most cases, the crucial decision is reached solely by reference to the hundreds of pages of witness statements, expert reports and photographs that comprise the dossier. While the witness evidence should theoretically be repeated orally, the judge may dispense with the requirement that witnesses attend. The role of the lawyers is therefore marginalized. There is no hostile cross-examination for the edification of a rapt jury; little cross-examination, in fact, at all. While there will be a defence lawyer, their role is usually limited to handing in written submissions on the law and evidence, and suggesting questions that the judge might wish to ask of a witness. In jurisdictions where oral questioning is allowed, it tends to be perfunctory and non-aggressive. No Garrows enlarging their role and demolishing terrified witnesses in a verbal frenzy. No Georges teasing out the inconsistencies in the evidence of first Mysha and then Tamara, clobbering them relentlessly with a club of bad-character evidence as they thrashed around on the video monitor, their eyes searching desperately, fruitlessly for help. In some inquisitorial jurisdictions, including Germany, Austria, Norway and Sweden, complainants are permitted to assist the prosecutor as a ‘subsidiary prosecutor’. Rather than being viewed as a powerless appendix to the prosecution case, served on a plate to a salivating defence lawyer, a victim can assume a meaningful role in their own right. Their dignity is preserved both by the manner of questioning and the significance accorded to their status.
Crucially, exclusionary rules of evidence are anathema. The only test for admissibility is relevance. Hearsay is a non-concept. The judge is trusted to weigh up the evidence, distinguish between primary and secondary accounts and attach appropriate significance to what appears in the dossier. Previous convictions of the defendant are not only admissible but considered important to the determination of guilt or innocence. If there is any evidence which the court considers ought to have been obtained, further inquiry can be ordered. Note the contrast to the jury, which, if it meekly approaches the judge and asks for more evidence, is told firmly that, ‘You’ve had all the evidence there is,’ and ordered to get on with reaching a verdict. In inquisitorialism, no relevant questions go tactically unasked. No reasonable avenues of inquiry lie uncharted due to the awkwardness they might portend to the parties. The finder of fact is not, as juries are here, prosecuted and gaoled for undertaking extra-curricular research into the case; it is encouraged to amass whatever information it feels it needs to get to the bottom of the case.
When the court retires to consider whether guilt is proved to the standard of intime conviction – roughly translated as ‘deeply and thoroughly convinced’3 – it must provide not only a one- or two-word verdict, but reasons for its conclusions.4 Whereas the sanctity of the jury’s verdict renders it a criminal offence in England and Wales to ask for or disclose details of a jury’s deliberations, leaving the Court of Appeal to speculate as to what a jury might have been thinking, the truth, as the court finds
it to be, is clearly and publicly set out and justified.
If the court found the witnesses credible, but in light of the lack of supporting evidence could not faithfully hold themselves out as sure to the requisite standard, that crumb of comfort could be offered to the devastated complainants as the not guilty verdict was returned. If the court was satisfied that a complaint was malicious, they could set out on public record the words that the acquitted defendant could forever embrace when faced with the inevitable, ugly, no-smoke-without-fire whispers that are invited by a blank, expressionless Not Guilty.
The adversarial model – or at least our version of it – eschews narrative verdicts. Instead of the verdict being the conclusive answer, it is often the catalyst for further questions that can never be resolved. Win or lose, that’s your only certainty. And so, after George, with the aid of that damned schedule, tossed grenade after grenade after grenade into the evidence of the two girls – the word ‘liar’ bouncing around the courtroom on a loop as he softly and politely tore each complainant apart – and after Jay went into the witness box and gave a fumbling, evasive performance in his defence, and after the jury returned with their verdicts, the foreman repeating ‘Not Guilty’ seventeen times as we advocates maintained our poker faces, no one could say where the truth lay; or even where it began.
All we had – and all we, for Jay, needed – was that inscrutable, favourable answer to those seventeen binary questions. But that was far from the truth. And that verdict and its obnoxious unknowability, although satisfactory for our client, didn’t get to the truth of what had taken place over the last twenty years.
Why do I say that I think Jay was guilty? Just a hunch. There was the material in the Social Services’ records, none of it conclusive, but much of it painting a clearer, darker picture than that achieved by the prosecution at trial. There was the way Jay presented in his evidence; his lukewarm denials contrasted to the raw hysteria of the complainants when challenged. There was his demeanour in that very first conference. The way he said, as we shook hands at the end, ‘Just get me off, yeah?’, delivered with the same casual arrogance I’d seen a hundred times before in career burglars who know they’re playing the game. There was the way he didn’t seem burdened in the way that I imagine I would be burdened if my children – my flesh and blood – accused me of those unspeakable, monstrous things. There was his reaction on acquittal; not so much screaming blessed relief as shrugging pleasant surprise. All those little tells.
The Secret Barrister Page 24
