The Human Cost of the Adversarial System.
There is a chilling tale in the UK press this week about the trial of a man accused of abducting and murdering a child.
What is as gruesome as the fact of the murder, is the personal cost borne by the family members of the victim who gave evidence. It is a corollary of the adversarial system.
The path of the cross examinations was to show the victim’s mother was guilty of neglect, and that perhaps favouritism of the victim’s sister precipitated her death. The father’s use of pornography were put in evidence. Portions of the victim’s diary was read in, describing her unhappiness and angst.
Defence counsel were attempting to elicit evidence that might persuade the jurors that the child may have run away, perhaps committed suicide, that she may not have been murdered by the accused.
The accused was convicted and sentenced to life imprisonment last Friday. He had already been convicted of two other murders. He has a history of manipulation and deceit. He is known to relish the pain he brings to the families of his victims. He did not give evidence.
The cross examinations of the family members have triggered an avalanche of criticism against the entire adversarial criminal justice system. Some papers are reporting that changes to the law are being considered.
There are abundant letters to the editor from lawyers, one supporting the defence counsel who, “cannot be blamed for tactics that were forced on them by the client and procedure”.
Others blame the press for unnecessarily reporting the prurient details.
A few voices have put forward the old axioms: however repulsive, a defendant’s case must be put to the jury; the judge and the Crown are there to ensure the attacks on the credibilty of witnesses stay within the rules of relevance and propriety; this is the cornerstone of our judicial system.
The case for me is an uncomfortable reminder of the deal we tend to forget we have struck: that in our pursuit of fairness to the accused, we can be desperately unfair to the innocent.
“… in our pursuit of fairness to the accused, we can be desperately unfair to the innocent.” But the accused could be innocent and the innocent may not actually be so. The problem is unavoidable. Lack of information plus action necessarily risks unjustified action.
More broadly, I blame human society as it seems to be. We take hypotheses, suggestions and accusations as more than what they are. To get to the actual, we must first wade through the merely possible. Once there we should discard the steps on our journey and enjoy the destination.