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Rethinking Criminal Law
Published online by Cambridge University Press: 20 July 2015
Extract
Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would you put in place? Would you exclude germane inculpatory evidence that has been obtained in violation of the accused’s constitutional rights? Would you permit spouses to testify against each other, or allow the jury to draw adverse inferences from an accused’s failure to testify on his or her behalf? These, in broad outlines, are the sorts of issues addressed by Larry Laudan in his superb Truth, Error, and Criminal Law.
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References
1. Among his many publications are Progress and Its Problems (Berkeley: University of California Press, 1977)Google ScholarPubMed, Science and Hypothesis (Dordrecht: D. Reidel, 1981), Science and Values (Berkeley: University of California Press, 1984), and Beyond Positivism and Relativism (Boulder, CO: Westview Press, 1996).
2. For example, Chapter 2 relies on Laudan, ’s “Is Reasonable Doubt Reasonable?” (2003) 9 Legal Theory 295 and Chapter 4CrossRefGoogle Scholar borrows from his “The Presumption of Innocence: Material or Probatory?” (2005) 11 Legal Theory 333.
3. This is not a logical inevitability, since it might turn out that no guiltym individual has ever been acquitted. But I think we can safely assume that this is not the case.
4. (1876) 10 Am. L. Rev. 642 at 656-57. The high treason cases in question arose out of the Irish Rebellion.
5. See, for example, the remarks of Blackmun, Justices Harry and Souter, David in Victor v. Nebraska, 511 U.S. 1 (1994).Google Scholar
6. In re Winship, 397 U.S. 358 at 364 (1970).
7. MPC, Comment 2 on §1.12(1), p. 190.
8. See Pannell v. Oklahoma, 640 P2d 568 (1982 Google Scholar). Wyoming apparently has a similar practice: Cosco v. Wyoming, 521 P.2d 1345 (1974).Google Scholar
9. In addition to discussing the moral certainty and high probability interpretations, Laudan also discusses BARD as that security of belief appropriate to important decisions in one’s life (36); BARD as the sort of doubt that would make a prudent person hesitate to act (37); BARD as an abiding conviction of guilt (38); and reasonable doubt as a doubt for which a reason could be given (40).
10. See Rawls, John, Political Liberalism (New York: Columbia University Press, 1993).Google Scholar
11. Ibid. at 49.
12. Ripstein, Arthur, “Self-Defence and Equal Protection” (1996) 57 U. Pitt. L. Rev. 685 at 695.Google Scholar
13. On the subject of the role played by objectivity in the standard of proof, see also Laudan’s discussion at 81.
14. For a similar argument, see his “The Presumption of Innocence: Material or Probatory?” supra note 2.
15. Does the foregoing contradict Laudan’s tentative suggestion, discussed on 55ff and 86ff, that it may not make sense to use the same SoP for all crimes? I do not see that it does. The foregoing does suggest that we would have to have a different m for different sorts of crimes (felonies vs. misdemeanors, summary vs. indictable offences). But this would not be problematic so long as each m remains subject to a principle of indifference between acquittals and convictions.
16. Laudan is prepared to add the following caveat, however: “Where there is compelling evidence that a certain type of relevant and reliable evidence is likely to be misconstrued by jurors and where there is likewise evidence that such misconstruals are not readily susceptible of correction by judge’s instructions and the arguments of opposing counsel, such evidence should be excluded” (122).
17. Jeremy Bentham, Rationale of Judicial Evidence, Book IX, Part III, Ch. 1 at 1.
18. I should note that while there is a Federal Criminal Code (see Title 18 of the U.S. Code) every U.S. state has its own criminal code. Thus, there is no such thing as the U.S. counterpart of the Canadian criminal system.
19. 2nd ed. (Toronto: Canada Law Book, 1975).
20. Ferguson, G.A., Dambrot, M.R., & Bennett, E.A., Canadian Criminal Jury Instructions, 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2005; 2007 Update) at 4.04–1.Google Scholar
21. Watt, D., Watts’ Manual of Criminal Jury Instructions (Toronto, ON: Thomson Carswell: 2005) at 146.Google Scholar
22. A nice comparative analysis and summary of this issue can be found in Penney, Steven, “Unreal Distinctions: The Exclusion of Unfairly Obtained Evidence Under S. 24(2) of the Charter” (1994) 32 Alta L. Rev. 782.Google Scholar
23. For a more detailed analysis, see Paciocco, David & Stuesser, Lee, The Law of Evidence 4th ed. (Toronto, ON: Irwin Law, 2005).Google Scholar
24. See, for example, R. v. Dolynchuk (2004), 184 C.C.C. (3d) 214 (Man. C.A.).Google Scholar
25. Penney, supra note 22 at 810.
26. Then again, given various recent Canadian miscarriages ofjustice—most notably those involving Thomas Sophonow, Donald Marshall, Stephen Truscott, Guy Paul Morin, David Milgaard, James Driskell, and Randy Druken, but also the recent Ontario case of Anthony Hanemaayer, who pled guilty in 1989 to a knife assault on a fifteen year-old girl, a crime to which Paul Bernardo later confessed—perhaps the political and judicial will is there for a reassessment of some rules of evidence and procedure.
27. Bentham was surely doing something like legal epistemology when he wrote Rationale of Judicial Evidence (1827), and Wigmore was undoubtedly doing legal epistemology when he published Treatise on the Anglo-American System of Evidence in Trials at Common Law (1904) and “The Problem of Proof” (1913) 8 Ill. L. Rev. 77.
28. “The Path of the Law” (1897) 10 Harv. L. Rev. 457 at 469.