The Scots Law Student

In the shadow of the Neil Lennon look-we-have-a-video-it-happened-on-TV Not Proven verdict Scott Greenfield writes about a law review article across the pond about how the exclusionary rule — one of the central procedural concepts in all litigation that’s ever heard of England articulating the principle that, for various reasons, some evidence is simply too unfair to be shown to a jury — is back firing on criminal defendants.

Greenfield’s primary criticism of the article is fundamentally that it’s a case of throwing the baby out with the bath water and I find him as persuasive as ever on this. The problem is jurors’ imaginations running amok rather than the ability to exclude, for example, torture confessions.

The problem is sort of a reverse CSI-effect where instead of juries assuming that, if the accused actually did it, there would be DNA and fingerprints; they assume that the accused did do it and there’s something horribly incriminating that their sleazy defence lawyer got buried. The jury then takes it on themselves to imagine what that non-existent evidence is and convicts accordingly. I don’t know how common this is and the rules on jury interviews in the UK makes it tricky to find out but it’s potentially a very serious problem, not least for what it does to the presumption of innocence.

I imagine this comes straight from police dramas where the sleazy defence lawyer is always getting stuff buried. It’s looking increasingly like your odds of conviction in solemn trials depends more than it should on if your jury prefers CSI to Law and Order.

The lesson seems to be that juries sometimes do unpredictable things, whether that’s returning unexpected verdicts, assuming evidence is normally definitive or that it even exists in the first place. We still have to be careful about constitutional safeguards, especially in jurisdictions where the constitution is as flexible as ours.

H/T: Simple Justice

4dd6465fc78a86d0987870f88dffcb9c