Analysis of Criminal Evidence by Roberts and Zuckerman - Book Report/Review Example

23 Criminal evidence by Roberts and Zuckerman is regarded as an original and itative contribution to the law of evidence, covering presumption of innocence, privilege against self-incrimination, hearsay, character and corroboration1. This book shows how important evidence is in a criminal case and how eloquently the cases hinge on the evidence. The fundamental principles of evidence combined with political theoretical and ethical significance and the details of principles, procedures, jury trials, litigation, oral witness testimony, expert witness/evidence, presumption of innocence and burden of proof, confession and self-discrimination are covered by this book. This book's first chapter covers the principles of criminal evidence, procedure, criminal justice and Human Rights. It brings out five foundational principles of criminal evidence, the rules and discretion. It connects the evidence to the Human Rights Act, constitutional criminal procedure etc. it is a critical commentary on regulating principles and admission rules in the context of broader criminal justice. SUMMARY It is argued that the principles are not readily available to suit all the circumstances and situations. "Principles of the Law of Evidence are not ready-made and awaiting collection; rather, they have to be reconstructed from the relevant institutional materials," Roberts and Zuckerman (2004, p.5). Evidence is the legal fact-finding exercise and there are many determining facts in legal procedures. It is usually applicable to civil and criminal proceedings although it need not be so always. In a civil litigation, it is confined to the parties' right to access the evidence. This does not mean that there is nothing in common between civil and criminal law procedures; but the theoretical and practical differences cannot be ignored. Criminal procedure and criminal justice have unique requirements and evidence answers most of it. It is the work of the State to make offenders suffer for their crime, and the punishment should have its own message. "Any account of criminal punishment would be seriously incomplete without reference to the message of blame with penal hard treatment is meant to convey," (pp.12-13). Retributive punishment is considered to be more appropriate than other kinds and this issue resurrects the rectitude and integrity of the administration with proper legal rights given to the defendant. "Amongst the most prominent corrective mechanisms is the presumption of innocence, reinforced by the privilege against self-incrimination," (p.15). The public confidence that the administration of criminal justice invokes is very important for the state and people both and despite a public trial being extremely painful for the involved parties; it is preferred as there is no other authoritative validation of justice and rules of evidence too contribute to the public confidence. State's work is not only providing ample protection to the citizens, but also to punish the offenders, so 'effective conviction of the guilty and solicitous protection of the innocent' both are equally demanded from the State. It is not easy to forget that the criminals are usually another face of the society and reflect the society's rot. The five principles of criminal evidence are: 1. A quest for accurate fact finding through evidence. 2. Pro-innocence bias. 3. Minimum intervention 4. Humane treatment 5. Upholding standards of propriety in criminal proceedings. The rules, principles and discretions are stretched beyond limit in some modern cases today, as they are grounded in the modern society and it is difficult for the law to foresee all the circumstances. Hearsay evidence is, for example, considered to be inadmissible. But sometimes there are peculiar circumstances that might make it admissible, because peculiar circumstances might crop up later. It is the same again in admissibility of illegally obtained evidence. There could be confusion even in discretion. "To fully appreciate the role of discretionary standards in the law of criminal evidence requires microscopic analysis of the factors bearing on the exercise of discretion in particular cases," (p.27). Some aspects of evidence depend on the judge too while persuading the jury, or stopping them from regarding a piece of evidence. The rule of discretion has to be governed by the need to protect rights and promote legal certainty as demanded by Rule of Law, though wrongful convictions should be avoided under all the circumstances. The criminal procedure today is government by Human Rights Act and Constitutional Criminal Procedure. It is not rare to see traditional law conflicting with the Human Rights law and domestic law in loggerheads with EU law. DISCUSSION Evidence is anything that could has some connection to the case or the event, which might influence the judgement. In the lawyer-free criminal trial days, evidence ruled the entire trial, till the lawyers started interfering and manipulating the evidence to the advantage of their clients. "The transformation from lawyer-free to lawyer-dominated criminal trial happened within the space of about a century, from the 1690s to the 1780s" http://www.oup.com/uk/catalogue/ci=9780199258888&view=lawview In criminal proceedings, there is nothing that is more important than the evidence. In the civil proceedings too evidence has the most important place, but criminal law literally stands on evidence. If the evidence is removed, there could be hardly any criminal justice. This cannot be applied everywhere. There are certain groups who could be exempted from the usual punishments in spite of the case having suitable evidence. According to Youth Justice and Criminal Evidence Bill, 1999, youth under 18 cannot be punished. There could be ample evidence enough to prove the guilt of the person. He himself might have accepted his burden of guilt. Still, he cannot be punished according to the criminal law, because he is under-aged, and an under-aged person is legally considered to be incapable of making sound decisions. So, at the most criminals who are below 18, could be sent to custodial sentence or referral places. Here evidences do not help much in procuring the sentence. It is a definite fact that in recent years, criminal justice and applying of evidence both have changed. With the advent of terrorism, many kinds of evidence have become admissible. Physical evidences (also called tangible evidences), photos, documents, trace evidence, X-rays, video, movies, maps, inflammatory photos, fingerprints, police photos, records of financial institutions and other businesses. In addition, electronic surveillance is introduced in recent years. Overheard and voluntary conversations, wiretapping, bugging, pen register, trace device, electronic tracking, and heat sensing etc.2 DNA profiling is a revolutionary type of evidence that has become increasingly popular in all the countries3. Many kinds of evidences are accepted and defined in law since the days of its inception. Circumstantial evidence, direct evidence, psychological evidence, tangible evidence, credible evidence, admissible and sometimes non-admissible evidences, presumptions, inferences, evidences that evoke suspicion and cast doubt and probability etc. Even though the direct evidence of an eye witness cannot be matched to any other kind of evidence, and is considered to be the best evidence in any case, circumstantial evidence, despite being based on a doubtful foundation, is equally popular. Its popularity lies in the fact that mostly eye witness accounts are not available whereas, circumstantial evidences are available in almost all the cases, leaving it to the court to ponder over its admissibility. There are very few cases where circumstantial evidence cannot be constructed at least to some extent. Scientific evidence is becoming more and more popular today for its correctness and dependability. It is difficult to ponder today that earlier courts did not have the luxury of scientific evidence although the courts had rich common sense and knowledge of life. A certain amount of scientific evidence was available for the last two centuries now. "Scientific evidence though used in court for centuries, did not achieve real prominence until the end of 19th century, when new scientific techniques such as anthropometry and fingerprinting, became increasingly common in police enquiries," Taroni et al in Keily (2001, p.46). One evidence that is growing in importance is Forensic Evidence. It is not yet available in all the places and is applied to very important cases only, even in developed countries. It needs extensive training and it is expensive. "Obviously it would be preferable if forensic scientists attended crime scenes as they are the people best placed to find trace evidence and to make decisions about the items that should be submitted to the laboratory. But forensic scene attendants are rare; they are called out only in the most serious or complex cases," Redmayne (2001, p.24). Still it could be considered as a fast growing body of evidence and soon most cases will be covered by it. Once again, it is the dependability of the evidence that attracts the legal administration. This does not mean that there had never been any wrong decisions from the forensic evidence; such situations are rather rare. Admissibility of evidence plays a major role in the court of law. All types of evidences cannot be admitted into the legal process. There are arguments about evidences like phone-tapping evidence, which has been never completely approved by general public. Government's argument that it has become necessary due to the ongoing terrorism and sometimes some evidence that would have been considered inadmissible, should be allowed now, as finding concrete evidence in such cases is next to impossible. This argument is contested by many who call such evidence interfering in day-to-day life and it should not be allowed. Again, evidence obtained the torture could be inadmissible; whatever could be the crime in question. "There are, however, no fundamental human rights objections to the use of intercept material, properly authorized by judicial warrant, in criminal proceedings. Nevertheless, intercept evidence is currently inadmissible in English law,"http://www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2006/liberty-welcomes-phone-tab-evidence.shtml Another evidence that suffers from admissibility problems is the hearsay evidence. The definition of hearsay evidence shows us its non-dependability. "A 'statement' is defined as any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photo fit or other pictorial form. A 'matter stated' is one where the purpose or one of the purposes of the person making the statement appears to have been to cause another person to believe the matter or to cause another person to act or a machine to operate on the basis that the matter is as stated" Section 115 of Criminal Justice Act, 2003. Despite its unpopularity in the legal procedures, hearsay evidence is getting used now as a secondary form of evidence, almost dependable, even though it is impossible for any case to hinge on it. But it is used as part of circumstantial evidence today. Presumption too is very close to hearsay evidence. In fact, hearsay evidence has more legs to stand compared to presumption. Presumption could simply depend on a person's deduction capability. Presumption is a probable consequence certain, or uncertain, but without direct proof, although the result of a logical reasoning. "The word presumption therefore, inherently imports an act of reasoning - a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we know to be invariably or commonly connected with some other related fact," Wills (1862, pp. 9-10). Some evidences which were considered to be absolutely admissible earlier, have now become rather doubtful entities. Courts have shown a tendency of considering even the dying declaration as non-admissible, upon the ground that "dying declarations are said to be receivable because from the circumstances under which they are delivered, they are equivalent to the evidence of a living witness upon oath, the dying declaration of an attainted convict has been rejected, as he could not have been permitted to give evidence, if he had been living" Philips (1843, p.296). There is some truth in saying that when the person is a suspect, his dying declaration is not dependable. Also when the person who heard the dying declaration is a suspect and if the dying declaration is in his favour and no one else has heard it other than the suspect, court will naturally have second thoughts about such evidence. The fact remains that it is for the court to establish whether the dying declaration is suitable to be admitted or not, depending upon the circumstances of the case and that of the dying declaration. Evidence sometimes depends upon the person who is providing the evidence and reflects on his character and the goodwill he has earned from the society. According to the Criminal Evidence Bill, evidence given by people whose character is known to be bad, could be treated sceptically and evidence provided by people who have unblemished characters are appreciated and believed more. There is no doubt that the scientific evidence rightly or wrongly, gains more importance than the human factor. "On the criminal law side, science based issues cover considerable ground, ranging from proof offerings in the areas of hair, and fibre analyses; soil, grass and paint, identification; and a host of facts related to forensic pathology, toxicology, blood products as well as the area of ballistics and tool marks" Keily (p.4). Balancing the human factor with the scientific proof once again is left to the Court of Law. Criminal law comes into conflict with human rights in many ways, more prominently so, after the onslaught of terrorism. Human Rights Act of 1998 is supposed to pose a serious challenge to the Criminal Law, for example, right to life (article 2) can question the killing on self-defence. "Section 6 of the Human Rights Act 1998 mandates all public authorities (which includes courts) to comply with the Convention so far as it is possible to do so and Sec. 4 gives appellate courts a power to make declarations of incompatibility," Clarkson (1995, p.5). This matter has created confusion in the courts of EU member States as the EU law is supposed to override Member State domestic law. A state of chaos prevails in this region even now. Human Rights also touch using the body evidences without the prior permission of the person. Undoubtedly this is a sensitive area where the human being should have the most important say, because it amounts to self-incrimination. But it is not happening that way. "There are clearly then great difficulties in arguing that the privilege against self-incrimination is violated by enforced sampling as well as a failure to successfully argue that other rights such as articles 8 and 14 are contravened by police powers to take non-consensual bodily samples," McCartney (2006, p.54). This remains one of the highly contested area of criminal evidence. It is easy to maintain the available evidence; but people depend on the officers and evidence collectors to maintain and use the available evidence in a highly professional way, which might not always happen. "The key to increasing the likelihood of locating and preserving important physical evidence in your case isn't just how quickly you commence your investigation, but also the creativity and care you and your team of experts use in preserving the evidence you find," Beitman (2005, p.1). From this angle, it is easy to conclude that human factor in the criminal evidence is more important and dependable, because the scientific factor could be lost, ignored or misused. In conclusion, it is necessary to add that every evidence, however unassuming it could be, is important for the case. It could be admissible or non-admissible, connected or unconnected; it has its own value of addition and subtraction in the available evidence of the case. It will contribute in its own way to the event and helps in solving the knots. BIBLIOGRAPHY 1. Beitman, Ronald S. and Spitzer, John B. (2005), Getting your Hands on the Evidence, Philadelphia, American Law Institute. 2. Clarkson, C.M.V. (1995), Understanding Criminal Law, London, Fontana Press. 3. Criminal Justice Act, 2003 in the Crown Prosecution Service, http://www.cps.gov.uk/legal/section13/chapter_v.html 4. Keily, Terrence F. (2001), Forensic Evidence, Science and the Criminal Law, CRC Press. 5. McCartney, Carole (2006), Forensic Identification and Criminal Justice, Cullompton, Willan. 6. Philips, S.M. (1843), A Treatise of the law of Evidence, London, Saunders and Benning. 7. Redmayne, Mike (2001), Expert Evidence and Criminal Justice, Oxford University Press. 8. Wills, William (1862), An Essay on the principles of Circumstantial Evidence, London, Butterworth. ONLINE SOURCES 1. http://www.oup.com/uk/catalogue/ci=9780198764977 2. http://www.oup.com/uk/catalogue/ci=9780199258888&view=lawview 3. http://www.ac.cc.md.us/classes/39-104/CRtopic.htm 4. http://www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2006/liberty-welcomes-phone-tab-evidence.shtml 5. Read More