Unfair trials

Lawyers ask: can Adrian Bayley, alleged murderer of ABC reporter Jill Meagher, get a fair trial? They don't ask whether trials are fair for victims, police, and taxpayers who fund the system. 

The Hon Russell Fox QC researched the law for 11 years. He concluded:

• Justice means fairness.
• Fairness and morality require a search for the truth, otherwise the wrong side may win.
• Truth means reality, what actually happened.

A few untrained judges in London (pop. c. 25,000) rejected a truth-seeking (inquisitorial) system in 1219.

Two early truth-defeating devices in England and its colonies were:

1. Lawyer-control. The civil adversary system dates from 1460, when lawyers began to take control of civil evidence. In this system, lawyers are allowed to use sophistry – trickquestions, false arguments etc – to make honest witnesses look unreliable. Lawyers also have an incentive to prolong the process: $300+ today.

2. Conspiracies concealed. Legal professional privilege has concealed evidence of conspiracy between lawyers and their criminal clients since 1577. The privilege protects the guilty, but not the innocent.

Lawyers first began to defend criminals (and take charge of and prolong criminal evidence) in the 18^th century. Since then, judges (still untrained) have invented another six truth-defeating devices:

3. Suspects' evidence concealed. The privilegeagainst self-incrimination, (including the right of silence) is based on a lie by the first legal academic, William Blackstone.

The privilege became part of the US Bill of Rights in 1791, but did not become a principle of the common law until about 1850. It protects the guilty but not the innocent. About half the guilty who refuse to give evidence are found not guilty.

4. Hearsay concealed. Second-hand evidenceis concealed because the original speaker is not available for cross-examination. Neither are the judges who made the rule.

Hearsay should be weighed, not concealed. For example, evidence was concealed that Nicole Simpson made a phone call to a refuge five days before she was murdered and said O. J. Simpson was stalking her and that she was afraid.

5. Pattern evidence concealed. Judge Fox says an understanding of facts depends heavily on context. Patterns of criminal behaviour have been concealed since 1894.

The rule obliges prosecutors to deceive jurors: repeat offenders, e.g. white and blue collar organised criminals and serial rapists, are presented as first offenders.

6. Contaminated evidence concealed. Evidence which was improperly gained is totally barred in the US. The Australian rule is that such evidence goes in only if it is reliable and if the alleged crime is worse than the investigators' misbehaviour.

Note. Judges accept evidence contaminated by lawyers' sophistry.

7. Any or all evidence concealed. In 1914, in what is called the Christie discretion, English judges gave judges the power to conceal any or all evidence if it might prejudice the jury against the accused.

A detective said: "As far as I can see, prejudicial means evidence that proves he did it." In some cases, jurors would be stupefied if reporters were to reveal evidence thus concealed after the verdict.

8. The jury formula. About 25% of guilty defendants get off because jurors do not know what "beyond what reasonable doubt" means, and judges are not allowed to tell them it simply means: Are you thoroughly convinced?