No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The above is the Fifth Amendment of the US Constitution. It exists to protect those accused of crimes from being forced to prove their innocence. It is the cornerstone of US law. No one can be compelled to testify against himself. No one can be compelled to testify in his defense. No one can be charged for the same crime twice.
This is followed by the Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Again, this is a fundamental part of the US legal process. No one can be held for long periods of time while awaiting trial (although this is violated frequently with high-profile, juvenile, and murder cases). No one can be prosecuted without being informed of the charges. Most importantly, no one can be tried without knowing who accused him and having the chance to question the accuser.
The right to cross-examination is important because it allows the defendant to challenge the accuser’s credibility directly. The legal definition explains the logic behind this:
[a] court practice, the part of a case, whether civil or criminal, where evidence is elicited from the other side’s witness. Thus, the defence will cross-examine the investigating police officers after the prosecutor has conducted the examination in chief It serves two functions:
(1) to test the veracity of the witness and the accuracy of the evidence;
(2) to obtain evidence on points on which he has not been questioned in chief and which may support the cross-examiner’s case. Failure to cross-examine on any matter generally implies acceptance of evidence on that point.
That is the purpose of the cross-examination. So when I see an effort in Britain to get rid due process and cross-examination in rape cases, I am reminded why the colonists decided to go their own way.
Elizabeth Truss, Secretary of State for Justice, stated that beginning in September of 2017 accusers in rape cases will be allowed to give pre-recorded testimony to spare them cross-examination:
Rape victims will be spared the ordeal of giving evidence in court under reforms being brought forward by the Government.
Justice Secretary Elizabeth Truss said that, from September, their cross-examination will be pre-recorded and then played to the jury during the trial.
The roll-out of the scheme was originally not scheduled to start until the beginning of next year but has been brought forward following an agreement with senior judges.
The logic Truss gives behind this concept is that in the pilot tests conducted in child abuse cases found that the accused were more likely to admit guilt when faced with the video.
She also argued:
“Attitudes to sex crimes and victims have changed beyond all recognition in our lifetime, and rape prosecutions are now at record levels,” Ms Truss said. “With more victims now finding the confidence to come forward, I am determined to make their path to justice swifter and less traumatic.”
Yes, it may be less traumatic, however, that does not demonstrate that the person is telling the truth. It only demonstrates their comfort when they know they will not be questioned. This is so obviously problematic that I am astounded that Truss and others cannot see the blatant issue with this policy. Correction, she does see the problem; she simply does not care:
“This will not reduce the right to a fair trial, but will make sure victims of these abhorrent crimes are protected and able provide their best possible evidence.”
Actually, it will reduce the right to a fair trial because the accused will never have a chance to question the testimony given against them short of the accused taking the stand and offering their version of the story, which can be cross-examined. That is clearly unfair, and it gets worse:
Ms Truss said the pre-recorded interviews will provide “much clearer ground rules” to counsel.
She added: “At the moment prior sexual history can only be asked about in exceptional circumstances, but sometimes questions can be asked that verge on that territory.
“If a question is asked that is inadmissible, that can be cut out of the tape by the judge.”
Now you will edit the testimony? How is this ethical? How is this legal? How does this not violate some aspect of British law?
Somewhat confusing is also the statement that a question would be inadmissible. My understanding is that no cross-examination would occur, implying that the omitted question would come from the prosecutor. Why would the prosecutor ask that question? Why would it be inadmissible?
The reason for this push for change is because of case in which a woman who was raped committed suicide five days after the assault. Some of the reports about Truss’s policy claim that the woman killed herself over fear of testifying, yet reports from the time of her suicide make no mention of it. Even if that we grant that was the reason for her suicide, it is not a good reason to implement this policy.
People have the right to face their accusers. While it is understandable that these kinds of cases stress out accusers, it is unethical and dangerous to allow someone to bear witness against a person without being challenged. A person has the right to face their accuser, question what they say, and point out contradictions or inaccuracies. Preventing the cross-examination makes the latter impossible, increasing the chances that false accusations will get through.
This is important because in many cases of false accusations, the only evidence demonstrating that the accusation is untrue is the accuser’s own words. Sometimes this comes out before trial. Yet sometimes it happens in the courtroom. The reason why this happens is because while a person can practice their direct testimony for days or weeks before a trial, it is hard to anticipate what questions the defense will ask. There is no way to truly prepare for that situation, which allows the defense to point out flaws.
This does not mean that every flaw in testimony is evidence of a false accusation. People make mistakes, forget information, add details, and so on. Everyone does this, and these things are no proof that no assault happened. Yet massive inconsistencies — incorrect dates and time frames, incorrect locations, incorrect descriptions of locations, items, or body parts — do suggest the accuser may not be telling the truth. None of that can come out if the testimony is pre-recorded and the defense cannot ask questions.
That they already used this method with child abuse cases makes it more disturbing because we know that children have been coached into making false claims before. In many of those cases, there is no physical evidence of a crime, so the defense’s only means of defense is questioning the accuser’s claims. If the child was coached well, their story, which people are inclined to believe due to the nature of the accusation, will sound more credible.
But what happens if it is a lie?
I do not understand how anyone who supports due process and the rights of the accused could support such a policy. The legal insanity does not stop there:
Ms Truss also announced a crackdown on paedophiles who use social media to “groom” child victims on line.
A new offence of “sexual communication with a child”, which comes into force next month, will carry a maximum two-year prison sentence with those convicted automatically being placed on the sex offenders register.
What is the sex offense? Where is the sex offense? They spoke to a child in a sexual manner, but did not have physical contact with the child? How are they a sex offender? And why should that carry a potential two-year sentence? Of course, none of the articles listed the age range for whom this law applies, so it is possible that this is not limited to someone over 18, meaning that children can potentially be charged under this law for “sexual communication with a child”.
I understand the desire to help victims of sex crimes. I understand the desire to protect children. However, this sort of thing is too far. The reason there are fewer convictions is because both US and British law require proof beyond a reasonable doubt. They require evidence that stands up to cross-examination. If the evidence is weak, unconvincing, or dismantled during cross, a person should not be convicted. This is our law because it is the most ethical means of dealing with crimes.
Yes, because of this set up, some guilty people will go free. While that may morally bother us, it is ethically, logically, and morally preferable to imprisoning innocent people for crimes they did not commit or crimes that never happened. Stripping away cross-examination increases the chances of someone going to jail or prison for something they did not do or something that did not happen.
That is wrong on the fundamental level. It is so intrinsically wrong that this is one of the few things you do not need to explain in detail to a child. A three-year-old understands that it is unfair to punish someone for something they did not do. To alter the law to make it easier to convict is the very definition of unethical. You lose all moral standing when this is the method you choose.
If you want to see how insanely biased this process becomes, look at rape cases on US college campuses. That is what it becomes.