11 September 2007

How can the Pickton jury disregard a skull?

A friend of mine was baffled by news today that the judge instructed Robert William Pickton's jurors to disregard evidence about a skull fragment found on the farm by police and belonging to a Jane Doe.

Sounds stupid, and frankly in some ways it is. But we have to make many painful compromises in law, and many are not as stupid as they first appear. So I took some time to explain it for her. Since the same kind of reasoning applies to this as to almost any legal weirdness (or any social objective whatsoever) I reproduce it hear for the benefit of... presumably no one.

Q: [paraphrased] Do you stupid lawyers actually believe that any normal person can just wipe something from their minds and pretend they never spent the whole day listening to that evidence?

A: No, we understand that it's an artifice. But there must be a bargain struck, as always, and this isn't a bad one.

In general in life there is no perfect, only some optimum. In statistics they simply call it Type-A and Type-B error, which are always inversely related in some fashion. It's easy to see at work in law. You might imagine that you want a system that gets 100% conviction of guilty criminals. However, such a system could only be established based on precepts that are antithetical to another ideal, which would give you 100% certainty that no innocent man would ever be imprisoned. It's also easy to see that in fact you will never get 100% of anything, but if you compare justice in Japan, Canada, and USA, (e.g.) you can get the picture that there are in fact pretty wild extremes even within systems that share many fundamental features. It's also impossible to put any quantifiable value on either of the outcomes, so that you could ever say that 50/50 or 60/40 or 99/1 was the best or optimal outcome. Every re-offender leaves tears in their wake every bit as real as those of a Stephen Truscott (if indeed innocent) or David Milgaard.

Similarly, I want a jury to have all the necessary information to make a decision. The problem is that lots of information is just bad information. I want them only to have good information (true, or accurate perhaps). Any rule pertaining to evidence (exclusion of hearsay, acceptance of business records, exclusion of evidence tainted by police misconduct) will inevitably exclude some good evidence in attempting to exclude bad, or admit some bad evidence in attempting to ensure all available good evidence is there.

Ok, now lets' take your present problem. Say that some witness blurts out some hearsay that is inadmissible. It should *properly* be excluded from the jury's deliberations. Similarly imagine they are shown photos of the mangled corpse of the victim. This is improper and they should ignore it because we already know the victim was mangled, but that has nothing to do with who mangled the poor soul. Or imagine a police officer gives evidence in respect of how evidence was gathered strongly implicating the accused. In all three of these situations, there's a potential evidentiary problem (that logic dictates hearsay is inadmissible; that triers-of-fact will improperly relate photos of the corpse with the identity of the accused; that triers-of-fact will improperly give greater weight to the evidence of the police officer than the evidence of the accused who admits guilt but pleads his rights were infringed, or even improperly imagine that the rights of a known felon are somehow less than those of any citizen except insofar as the infringement is constitutional and imposed in accordance with the law).

How far are we going to go to make sure this information does not affect the trier of fact? In some cases, the introduction of such evidence is so poisonous to the possibility of a trial that there will be a mistrial and another jury will have to be convened and we start the whole circus again. You can imagine if we did this for every evidentiary problem we would swiftly destroy the jury system. We of course do things like pre-trial discovery and hold voir dire procedures (without the jury) to avoid having this problem in the first place, but again placing too much emphasis on these systems would ultimately pervert the entire concept of a trial in open court by a jury of your peers. By pressing too hard on any Type A problem we inevitably create or exacerbate some type B problem.

So sometimes you do the best you can do; in this case the judge (who is also the trier-of-law, and thus in a position to determine what is properly before the jury, whereas they are not in a position to determine what they see, but only what they think of it) decides the skull is against the rules. It potentially has something to do with the murder of a jane doe, but this is a murder for which the suspect has not been charged. I hear they found bits of zillions of people there, but that could even be considered exculpatory - surely with so many traces of so many different kinds of DNA there is another explanation than the deliberate feeding by a single man of perhaps hundreds of humans to swine?? This is also part of a series of similar bargains - the police in focusing their search, the Crown in deciding on which of the many murders they have evidence for they are most likely to obtain convictions, the Crown again in deciding what evidence to adduce, the defence in resisting the introduction of that evidence and the judge in deciding its inadmissible but not so poisonous as to ruin the whole trial and make us begin again.

So, while we assume that judges and lawyers are much better than laypeople at actually doing this, nonetheless we have juries composed of laypeople and not bored lawyers, and that's that. So the judge sternly intones that they are to put it out of their minds. And frankly, I can picture the discussion at the jury table, and someone saying "but they found bits of dozens of girls there!" and someone who was paying more attention saying "yes, we all know that, but that's not relevant - we need to focus on these seven girls and if the bastard killed them, then that's the best we can do." And that would be fine and dandy and although it seems a bit unlikely many of the alternatives seem much worse.

Incidentally there is one evidentiary rule that is similar which really pisses me off, which is evidence tainted by police misconduct (which is generally excluded). I always think that if a judge finds misconduct poisoned the gathering of evidence, that finding should immediately commence a process involving the officer (who depending on circumstances may receive a warning or be thrown in jail himself). I find it very strange that we punish the public (in the form of more criminals released as not guilty) for police misconduct.

PS - It seems pretty obvious the jury will see more than enough evidence to send Pickton to jail forever.

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