Today

Thursday Thinkpiece: Modern Criminal Evidence

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Modern Criminal Evidence

General Editors: Brian H. Greenspan and Justice Vincenzo Rondinelli
Authors: Matthew Gourlay, Brock Jones, Justice Renee Pomerance, Glen Crisp, Jill D. Makepeace
Foreword: Justice David H. Doherty
ISBN: 978-1-77255-642-1
Publisher: Emond Publishing
Page Count: 792
Publication Date: August 2021
Regular Price: $295 (print), $271 E-book

Excerpt: from Chapter 2: From Evidence to Verdict: Confessions of a Judicial Fact-Finder [Footnotes omitted]

1 Introduction

This is a book about evidence. Therefore, it is also a book about judicial fact-finding. The two are interconnected. Parties introduce evidence because they hope to generate favourable facts. Evidence leads to facts, and facts, combined with law, lead to a verdict. The facts matter. They are usually dispositive of legal disputes. Some cases turn on abstract questions of law; most turn on how the law applies to specific facts. Law without facts is theory, and “[t]here is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts.”

The role of the judge has evolved over time. Historically, judges often presented as inscrutable ciphers, sitting passively on the dais as the evidence washed over them. Things have changed. Counsel are still responsible for leading evidence and presenting the case; however, judges are far more likely to intervene to ensure fairness, adherence to the law, and/or proper use of judicial resources. When it comes to resources, judges must be alive to the constitutional right of accused persons to trial within a reasonable time. As the system places increasing demands on finite court resources, judges are more actively involved in case management and supervision of the time set for proceedings.

Beyond that, and more importantly, judges must advert to their obligations to ensure the fairness and integrity of trials and other proceedings. For example, a trial judge may reject inadmissible evidence even if opposing counsel have failed to raise objection. A trial judge may take a proactive approach to prevent inappropriate questioning of a complainant in a sexual assault trial. A trial judge may have concerns about the reliability of scientific evidence that has gone in with the consent of all counsel. These are but a few examples. Such interventions must be approached with care. On the one hand, the trial judge is entitled, and indeed obliged, to ensure the integrity of the proceedings. Trial judges, like all participants in the trial process, have a duty to prevent wrongful convictions. On the other hand, the trial judge is not an advocate and must take care not to appear aligned with a party to the dispute. Interventions must occur in a manner that does not give rise to a reasonable apprehension of bias.

All of this is to say that judges perform various roles. They are gatekeepers. They are umpires. They monitor the conduct of other participants in the process. They take steps to ensure a fair hearing. They keep evidence out or allow it in. They reach verdicts or help juries reach them. They instruct jurors and themselves on principles of law. They are case managers and time managers. All of these functions are undertaken in aid of the delivery of justice. Justice Rosalie Abella has observed that, “of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate.”

Of particular interest to this chapter is the role of the judge as fact-finder. There are different types of facts. Adjudicative, legislative, and social facts are distinct from one another, though they are not watertight compartments. Facts may be based on evidence, but they may also flow from common sense and judicial notice. Judges apply facts when deciding whether evidence is relevant. Judges apply facts when deciding whether evidence is admissible. Judges apply facts when deciding what needs to be told to a jury. Judges apply facts about finding facts. Judges apply facts consciously and subconsciously, advertently and inadvertently, fast and slow. This is a function of being a gatekeeper, a fact-finder, and a human being. How we find facts, and the sources from which they are drawn, have implications for the administration of justice.

The importance of fact-finding is obvious; the mechanics of it less so. What do judges think about when making factual determinations? How is it that different judges may view same evidence differently? What are the sources of knowledge that judges draw on when evaluating evidence? These are important questions. Some might fear that, as with sausages, to know the recipe is to spoil the appetite for the final product. If that be so, it is all the more reason to inquire. We should pay attention to all of the ingredients, including unappetizing bits. The more we speak about the process, the more transparent it becomes. With transparency comes better understanding. Understanding makes judicial decisions more accessible to litigants, reviewing courts, and the general public.

This chapter will focus on two aspects of fact-finding. First, I will address the hidden layers of fact-finding that operate during a trial. Fact-finding is most obvious when the trial judge is the ultimate trier of the case, but judges apply facts throughout the process. Second, I will address the interaction between, and intersection of, the various sources of factual knowledge that judges have at their disposal. The lines between common sense, judicial notice, and expert evidence are not always clear, particularly when dealing with principles of human behaviour. Finally, practical tips for counsel will appear throughout the chapter.

II. Perspective, Truth, and the Role of Assumptions

A. Individual Perspective

Judging has a human dimension. To be human is to be fallible. Yet, our humanness is what qualifies us to be good fact-finders. As then Chief Justice Beverley McLachlin once put it:

Judges are human beings. They are sons and daughters, husbands and wives, parents and friends. They coach the local soccer team, cook dinner when they come home at night, and line up in airports when they go on vacation. Insofar as their humanness may be a distraction, as Tolstoy suggests, judges must strive to overcome it. But the benefits of judges being human beings greatly outweigh the detriments. Judges deal with human problems. They must be able to relate to these problems, to understand them.

To be human is also to have a perspective—a distinctive world view that is the culmination of our own background and experience. We all have a filter through which we perceive and understand the world around us. Benjamin Cardozo famously wrote that “we may try to see things as objectively as we please; none the less, we can never see them with any eyes except our own.” Yet that is the judicial challenge—to be conscious of personal biases, preferences, and ideologies and their impact on decision-making. This does not mean that judges must leave their selves at the courtroom door. Judges are to approach fact-finding with an open mind, not an empty head. What is critical is that judges be aware of the limits of their own perspectives. A strong dose of self-reflection and self-critique are prerequisites to impartiality.

Judges rely on what they know of the world, but what we “know” is sometimes more accurately described as what we perceive or believe. Knowledge filtered through perception and belief may or may not be accurate. It may or may not be of general application. We are not to discount our life experience or identity, but impartiality requires us, as judges, to rid ourselves of “inappropriate and undue assumptions.” We are to “to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies.”

Even when judges act impartially, they act as individuals. Different judges may hear the same evidence yet reach different conclusions. Consider a hypothetical case in which the complainant is cross-examined on a prior inconsistent statement. A trial judge might write the following about the prior inconsistent statement:

It is not every inconsistency that detracts from the credibility of a witness. minor discrepancies about peripheral matters may have no impact on the assessment of sincerity and reliability. In this case, the inconsistency bears on a fact central to the allegation; how the assault was carried out. I am troubled by the differing accounts. The complainant testified that the event remained in her mind over the years. This was, according to her, the only occasion when the accused forced a sexual act upon her. One might expect that she would have a clearer recollection of what took place. Has she confused the alleged incident with another event? Has the passage of time distorted her memory? Even if the complainant is being truthful, the inconsistency raises concern about the reliability of her account.

Alternatively, the trial judge (or, perhaps, a different trial judge) might take a different view:

It is not every inconsistency that detracts from the credibility of a witness. Minor discrepancies about peripheral matters may have no impact on the assessment of sincerity and reliability. In this case, the inconsistency does not affect the core of the allegations before the court. The complainant does not recall the precise mechanics of the assault. What she does recall, clearly, is that she did not consent to the continuing sexual activity, however it unfolded. She was not shaken from her assertion of non-consent and expression of nonconsent. Whether she was pinned down, or pulled on top of the accused, the forced intercourse amounted to a sexual assault. I do not see the inconsistency as detracting in any significant way from the complainant’s credibility.

Which of the above passages is correct? To ask that question is to misperceive the nature of judgment. The process of judgment is not simply a matter of subjective preference. Nor, however, are judgments amenable to empirical measurement or mathematical correctness. Judgment stands somewhere between objective truth and subjective preference. The measure is not correctness but validity. One could argue that both passages are valid, in that each articulates a rational justification for the conclusion. The choice of one conclusion over the other likely depends on a host of factors, including the other evidence adduced at trial and the submissions made by counsel for the Crown and defence. It may be difficult for an observer to explain why a judge has chosen one conclusion over the other, though this is clearly an issue on which the judge, as fact-finder, should interrogate themself.

B. Truth

Trials are often described as the search for truth. That too must be understood within the context of the adversarial system. It would be naive to suggest that there is an objective discernable truth waiting to be uncovered by the trier of fact. We sometimes discover after the fact that a judgment was incorrect, as in the tragic instance of a wrongful conviction. However, most of the time, we do not have access to a truth independent of the evidence heard at trial.

How, then, does truth figure into our system of justice? Truth is sometimes a matter of perspective, as is demonstrated by almost any case involving multiple eyewitnesses. Truth is sometimes a matter of honesty or deceit. Judges often have to consider whether sincere witnesses are mistaken or less-than-sincere witnesses are lying. These are challenging assessments, particularly where there is no extrinsic evidence to corroborate or refute a witness’s account.

Judges look to a number of factors to guide the decision on reliability and credibility. These include opportunity to perceive, likelihood of recall, consistency of accounts, plausibility, and other considerations. If the reason for disbelieving a witness cannot be articulated, it may not be a legitimate reason to disbelieve the witness. The goal is to base credibility assessments on objective and articulable considerations. Credibility determinations lead to factual findings and those represent our best estimate of the truth. We are purportedly looking for truth, but, in reality, judges are deciding which account of the truth they are prepared to accept. Prof Audrey Macklin made this point, writing about credibility findings in the immigration context:

Thus far, I have tried to demonstrate why the “search for truth” is a quixotic task. It presumes not only that there is an objective reality out there, but that decision makers can uncover and apprehend it using tools such as demeanour, consistency and plausibility.

• • •

Ultimately, I came to the conclusion that credibility determination is not about “discovering” truth. It is, rather, about making choices—what to accept, what to reject, how much to believe, where to draw the line—in the face of empirical uncertainty. Acknowledging that judging is about choosing, and not about discovering, shifts the focus of credibility determination in significant ways.

Various factors have an impact on the ability of the process to divine objective truth:

  1. Evidence is always incomplete; we can never obtain all of it.
  2. Evidence is commonly inconclusive.
  3. Evidence is often ambiguous, in that it does not clearly support one factual finding over another.
  4. The whole of the evidence is often dissonant, with some evidence favouring one conclusion while other evidence favours the contrary conclusion.
  5. Evidence comes to us from sources whose credibility, to some degree, is less than perfect.

The “truth” is presented through various filters: witnesses’ abilities to perceive, recollect, and communicate, all of which are affected by the witnesses’ preconceptions about the world. We must add to that the filter of the fact-finder, who is a witness of the witnesses. According to Frank:

A trial judge is himself a witness—a witness of the witnesses. His faulty observation of the witnesses, due to inattention or other factors, or his mistaken recollection of his observations, affect his fact determinations.

In other words, the notion of factual certainty is, within the trial context, a mythical notion. As it was put by Hon Beverly McLachlin:

The truth is not out there, waiting to be discovered like a gift under the justice tree. The truth is rather a process—a process of searching, sifting, listening and critically reflecting. When we understand this we are in a better position to appreciate the enormous strengths of our justice system and to rectify its occasional failings.11

Finally, it is important to observe that sometimes the court does not accept any account or can only parse pieces of the narrative. Judges must be comfortable with not being able to get at the truth. Gaps in the narrative might signal that the Crown has failed to meet its burden. It has been observed that human beings have a natural inclination to look for cohesion. There is a corresponding risk that fact-finders will look for a single true story while selectively disregarding evidence that contradicts that narrative.12 Judges have to resist the temptation to fill in gaps to achieve coherence. It is not our job to decide what happened. It is our job to decide if the Crown has proved the case beyond a reasonable doubt. The dissonance of an incomplete or uncertain picture may be the cognitive equivalent of a reasonable doubt.

Practice Tips

What is the lesson for counsel? I suggest that good advocates do the following:

  1. Identify the specific facts that you are asking the court to find. Do not just ask for a verdict. Identify the factual steps that will take the judge there.
  2. Identify why the factual findings that you urge upon the court are valid. Provide analysis as to why a witness’s evidence should or should not be accepted. Appeal to logic and reason.
  3. Avoid blatant emotional appeals. Judges are seeking light, not heat. When the equities are in your favour, fold them into an argument buoyed by principle and logic. When they are not in your favour, acknowledge the equities, explaining why they cannot supersede the application of principled analysis.
  4. Consider whether there is an objective anchor in the evidence against which testimonial evidence can be measured. For example, a photograph or a recorded 911 call is not subject to the frailties of perception and memory. Consider whether such evidence supports or refutes the testimony of trial witnesses
  5. Be alive to gaps in the narrative and the impact of those gaps on the burden of proof. Do they amount to reasonable doubt on the elements of the offence, or are they beside the point? Where applicable, address the importance of not filling in gaps to create a coherent story.
  6. Be aware that you can challenge a witness’s credibility without calling that person a liar. Witnesses can be mistaken, and many factual arguments can succeed without suggesting deliberate dishonesty. On the other hand, do not be afraid to advance an argument based on deceit if it is supported by the evidence and is necessary to effectively advance your claim.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)