Hard News by Russell Brown

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Hard News: The war over a mystery

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  • HORansome, in reply to Islander,

    My nom-de-plume is HORansome, not "HOR Ransome."

    As for the expert testimony material spiel, as you put it, maybe I am being an arsehole, but that's a separate issue from that which I raised, which is a question about how we assess the reliability of such testimony. You might well want to assert that water-boaters always get it right; given what I've read, I'd be surprised if they do better than the norm for other such expert witnesses.

    (Which ignores the other, possibly less contentious issue, which is that in a court of law, witnesses are often coached to phrase their testimony as being certain when, if asked in other contexts, they might be more cautious in conveying what they believe they saw.)

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • Joe Wylie, in reply to Ross Francis,

    I'd add Philip Sturm, another case that glared false conviction

    I must confess I don't know much about this case other than what's been reported.

    Me too. If it hadn't been for Simon's expressed concern at the time I'd have taken the media coverage at pretty much face value.

    While I'm not usually party to inside info on these kind of things, I'm still occasionally troubled by a story from a particularly unpleasant crime being investigated in West Auckland in about 1980. A normally discreet acquaintance who had regular contact with one of the detectives involved was sufficiently disturbed by his approach to unburden herself.

    It seemed that the police were confident that they had their suspect, a Pacific Island guy who'd been doorknocking in the area seeking odd jobs. In the course of building their case they spoke to a supposedly good neighbourhood boy, an adult with a pronounced intellectual disability. Quite unexpectedly he told them that, while he had no involvement in the crime, he'd dreamed about it, and went on to reveal details of his 'dream' that only the perpetrator could have known.

    He was eventually convicted with the help of what was at the time a groundbreaking forensic technique. The disturbing thing about the police attitude, though, was when the detective involved was asked if the police intended to apologise for detaining their Pacific Islander suspect, he was supposed to have confidently replied that they'd "get him for something."

    flat earth • Since Jan 2007 • 4547 posts Report Reply

  • Stewart,

    There seems to be (or have been) a culture within police investigations of determining a 'main' suspect and then abandoning other lines of enquiry and focussing on those lines of enquiry that strengthen the case against this main suspect.

    I don't know if this is a costing issue (too costly to continue pursuing leads other than those incriminating the main suspect?) or a cultural one whereby the 'gotcha' blinkers go on and alternative lines of enquiry are deemed unproductive or unimportant.

    Not so much a case of 'fitting someone up' as determining a suspect and then moulding the inquiry to convict the suspect.

    Te Ika A Maui - Whakatane… • Since Oct 2008 • 577 posts Report Reply

  • Stephen Judd, in reply to Stewart,

    There seems to be (or have been) a culture within police investigations of determining a ‘main’ suspect and then abandoning other lines of enquiry and focussing on those lines of enquiry that strengthen the case against this main suspect.

    I think that's a general tendency in groups under pressure. My experience of trying to solve and diagnose complicated problems as a team is that it takes a lot of mental fortitude to continue to be skeptical once a consensus emerges about the causes of the problem YOU ARE JUST CONFUSING THINGS STEPHEN and in particular senior people can often seize on a preferred hyopthesis and treat it as truth prematurely because they need to front other people with an explanation. I'm sure you can create a culture of analytical rigour and open-mindedness if you try hard enough... it's hard though.

    Wellington • Since Nov 2006 • 3119 posts Report Reply

  • Stewart,

    Yes, I quite agree. However, given the stakes and the need to get it right, I feel the police should have procedures to actively strive not to fall into this mind-set.

    Tough ask, I admit, but I know I wouldn't want to be 'the main suspect' under such circumstances.

    Te Ika A Maui - Whakatane… • Since Oct 2008 • 577 posts Report Reply

  • HORansome, in reply to Stewart,

    My mother considers this to the chief difference between American vs. British cop shows; in American cop shows the detectives signal out the main suspect and the suspect usually turn out to have committed the crime. In British cop shows the detectives signal out the main suspect who ends up not being the real perpetrator.

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • Ross Francis, in reply to HORansome,

    we have a rigorous appeal system which requires you to go through substantive hoops

    Is that meant to inspire confidence? Legal counsel for David Bain found the hoops too onerous but as soon as they travelled to the other side of the world they discovered that Bain had been the victim of a "substantial miscarriage of justice".The Privy Council made the same point that I made earlier - it's not up to the Court of Appeal to decide the merits of any new evidence, that's a job for jurors. I note that Peter Ellis has also found the appeals process too onerous, despite clear and compelling evidence that he was wrongly convicted. When you have a retired Judge (Thorp) suggesting that we need a CCRC, you have to admit that the current set-up needs improving.

    Wairarapa • Since Apr 2012 • 26 posts Report Reply

  • Sacha, in reply to HORansome,

    if asked in other contexts, they might be more cautious in conveying

    the show's guest independent forensic scientist addresses that.

    Ak • Since May 2008 • 19478 posts Report Reply

  • Sacha, in reply to Stewart,

    I feel the police should have procedures to actively strive not to fall into this mind-set.

    Other countries have a fully separate prosecution service, rather than combining the functions as we do.

    Ak • Since May 2008 • 19478 posts Report Reply

  • Matthew Poole, in reply to Sacha,

    Other countries have a fully separate prosecution service, rather than combining the functions as we do.

    And we know how well that works in the US.
    Also, the Police here only act as the prosecutors for some offences. Serious offences are prosecuted by the Crown, but their case is only as good as the evidence supplied by the Police and that's the failure of any adversarial judicial system. It doesn't matter if you have a fully independent prosecution service, because the investigators are the ones who control the evidence supplied in determining if there's a case.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • HORansome, in reply to Ross Francis,

    Ross:

    I was talking about the stipulative nature of how we define the burden of proof in a legal setting (and how the burden of proof shifts post trial). I was not saying the system is perfect.

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    that's the failure of any adversarial judicial system

    some interesting thoughts expressed on that during the show too.

    Ak • Since May 2008 • 19478 posts Report Reply

  • Matthew Poole, in reply to Sacha,

    I should point out that I'm not averse to adversarial judicial systems, on the whole. They are, however, vulnerable to the investigators cherry-picking data. Inquisitorial systems are not vulnerable to that, but instead are vulnerable to the biases of the inquisitor.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Keir Leslie,

    That is confused, I think. The burden of proof at trial is on the Crown. But afterwards, there isn’t really a burden of proof, because generally appeals are only on law, not fact. The fact that there has been created, at this late date, a mechanism for review of facts, with a prohibitive burden of proof, hardly means that we should accept that standard ourselves.

    Or, rather, the courts need a decision. We don't, and we needn't adhere to mechanisms designed to produce decisions.

    (By the way, while the `what counts as proven guilty is determined by the courts’ is a very attractive statement, the obvious follow on is that guilt is a purely formal term with no connection to any state of affairs except the judicial, a conclusion that we can hardly countenance.)

    Since Jul 2008 • 1452 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    (By the way, while the `what counts as proven guilty is determined by the courts’ is a very attractive statement, the obvious follow on is that guilt is a purely formal term with no connection to any state of affairs except the judicial, a conclusion that we can hardly countenance.)

    Why can't we countenance it? Surely, in the judicial system, guilt is merely having been found guilty of a crime? Sure, there are other types of guilt; I might feel guilty about eating all the guavas and leaving none for my flatmates, but that's moral guilt and, unless eating all the guavas and leaving none for my flatmates is a crime, I'm only guilty in a moral rather than legal sense.

    Long story short: It's actually very useful to distinguish between guilt in the judicial sense and guilt in, say, the moral sense. Whatever we think about the Bain retrial verdict, he has been found "Not guilty." Lots of people think he is guilty, but, legally speaking, he is not guilty.

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • Keir Leslie,

    yes yes, have fun playing in the formalist lands of guilty-if-in-jail etc. But when we get back to earth, there is a crisis of legitimacy in a legal system where legal guilt doesn't correspond to actual guilt.

    Since Jul 2008 • 1452 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    But when we get back to earth, there is a crisis of legitimacy in a legal system where legal guilt doesn't correspond to actual guilt.

    Well, no. This is precisely why we have a system of "Innocent until proven guilty" (not all jurisdictions are similar); we have chosen a system whereby the prosecution has the burden of proof, knowing full well that sometimes people who are guilty (say, in a moral sense) of some activity will not be found to be guilty in a legal sense and (we should hope in very few cases) sometimes people who are not guilty in, say, a moral sense might be found to be guilty in some legal sense. These are the tradeoffs we have elected to have in our judicial system.

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • 3410, in reply to HORansome,

    I think the idea of "guilty in a moral sense" muddies the waters somewhat. In the guava example you are guilty in a factual sense, if not a legal sense.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • HORansome, in reply to 3410,

    I'm not sure what "guilty in a factual sense" means. I can understand what legal guilt is and moral guilt, but factual?" What fact am I guilty with respect to?

    There's no legal sense of guilt in the example I gave (unless there is some rule about leaving some guavas, et al, for the flatmates) but I may well have transgressed some social norm, which means I'm guilty of being a bad flatmate. However, the latter is no crime, but it might well be construed as bad behaviour and thus, if not immoral, morally suspect.

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • 3410,

    I'm not sure what "guilty in a factual sense" means. I can understand what legal guilt is and moral guilt, but factual?" What fact am I guilty with respect to?

    You feel guilty about eating all of the guavas because you are guilty of eating all of the guavas.

    We're really not that far apart on this; I just don't think it's right to talk about "moral" guilt when you're simply discussing whether or not you committed an act. It's a matter of fact; did eat the guavas = guilty of eating the guavas, did not eat the guavas = not guilty...

    The "legal sense" is a finding. You are found (or not found) to have been proven guilty.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • HORansome, in reply to 3410,

    We're really not that far apart on this; I just don't think it's right to talk about "moral" guilt when you're simply discussing whether or not you committed an act. It's a matter of fact; did eat the guavas = guilty of eating the guavas, did not eat the guavas = not guilty...

    But not all acts have an attendant guilt state. I'm not guilty of sitting here typing (which is an act I am currently committing). I can see where you are going with this, but I think this unrestricted notion of "guilt" is too broad to be useful.

    Tāmaki Makaurau • Since Sep 2008 • 440 posts Report Reply

  • Keir Leslie,

    Yes. We are making a tradeoff, that for every ten etc. This has nothing to do with anything -- the courts can be wrong without there being no correspondence. The claim you are making about legal guilt is much much stronger, and has generally been rejected by legal systems throughout the world. In general attempts to play silly buggers with the concept of legal guilt are corrosive to liberty and public trust in the judicial system. This is why Scalia condemns a man to die saying that he is not concerned with factual innocence, merely judicial correctness.

    Since Jul 2008 • 1452 posts Report Reply

  • nzlemming,

    In discussions about the law, it is not "just semantics" or "chop-logic" or even "formalist lands of guilty-if-in-jail" to require strict definitions of terms. After all, that is what we pay lawyers large sums to argue before a judge.

    In talking about the law and courts, "guilty" can only mean "found guilty by a judge and/or jury". If an accused is found "not guilty", then s/he is legally not guilty - end of story. You may personally think the accused committed the crime, but that is only your opinion and does not impute actual guilt.

    Waikanae • Since Nov 2006 • 2830 posts Report Reply

  • Keir Leslie,

    Er, that's not true. Suppose I am hauled up before a biased judge, and found guilty, without ever having committed a crime. Am I guilty? No, very much not. I am innocent. It is very attractive to head towards a totally pragmatic definition of guilt but the subsequent legal system lacks any legitimacy.

    Since Jul 2008 • 1452 posts Report Reply

  • Chris Waugh,

    I don't have much serious to add to the discussion, so...

    A British cop, an American cop and a Chinese cop are sitting around a table drinking tea and swapping 'war stories'. A report comes in of a bear in the forest. The British cop says, "Leave it to me", and walks off. 10 minutes later he comes back and says, "I couldn't find the bear, but I shot a Brazilian electrician." The American cop says, "I'll get that bear", and walks off. 10 minutes later he comes back and says, "I couldn't find the bear, but I saw a black guy walking away and shot him 29 times in the back". The Chinese cop says, "I'll take care of this", and walks off. 2 minutes later there's an almighty hullabaloo in the forest, then the Chinese cop comes back holding a rabbit by the ears. The rabbit has his front paws up and is crying, "Alright! Alright! I'm a bear! I'm a bear!"

    That's my boss' favourite joke. I wonder how you could work a Kiwi cop into that...

    Wellington • Since Jan 2007 • 2397 posts Report Reply

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