In the coming months, and potentially years, the law courts will have to decide on a number of national issues which have shaken the Mauritian society – did the ex-Attorney General lie to the whole population in the alleged aggression of a teenager ? Who instigated the change in the pricing of the sale of the Medpoint clinic ? Were secretaries of judges really involved in an alleged case of corruption ?
At the same time, the controversial “Criminal Amendment Bill” raises interesting questions as to the reforms that should be carried out to modernise the legal system, whilst it has also been suggested that the “L’Amicale” trial was a miscarriage of justice case.
A modern legal system should command faith and respect, and the duty of the law court is to see that justice is done and that the truth prevails.
The truth and the verdict
The truth however has many shades and hues depending on one’s role within the legal system. A trial can be compared to a dramatic production. A theatrical performance requires a designated space in which it can be staged. In the case of a trial, this is the courtroom. As well as the architecture of the courtroom, the costumes worn by the different players also create dramatic effect. A barrister is in many ways like an “actor” when he puts on a “costume”, namely the gown (and in England a whig !) ready to impress his “audience : the jury. Like a film director, the barrister organises the evidence at hand and the questioning of witnesses to create a coherent and persuasive story. His “performance” is a crucial ingredient to the process – through various techniques of advocacy and the impact of a closing speech. If he puts on a good show the barrister gets the ultimate “award” – the verdict returned in his favour !
This is not a caricature of the legal system. The British common law is a legal system based on oral traditions, unlike the text based Napoleonic systems. The practice of common law is based upon the simple expedient of narrative and barristers were historically described as “narratores” or “storytellers”. In “Origines Juridiciales”, William Dugdale provides an account of educational exercises undertaken by law students during the early 17th century, all of which took place in the halls and libraries of their respective Inns of Courts. The most striking aspect of his description is the primacy accorded by the curriculum to performance and debating skills.
The parallel between a trial and a theatre performance underlines that the parties to a dispute are more concerned about winning than establishing the truth. The pursuit for the “verdict” rather than the “truth” is inherited from the British “adversarial” model, which is characterised by two opposing parties gathering, selecting and presenting evidence for trial. The court has an adjudicative rather than an investigating function ; it has no mission to go beyond the evidence presented by the partisan parties (or increasingly, their representatives), either to seek out further information or to verify the probity of that offered. That is the task of the parties themselves. The adversarial process can thus be best described as a contest between advocates and not litigants.
This can be contrasted with the Napoleonic “inquisitorial” system which entrusts the investigation and trial of criminal offences not to individual and opposing parties, but to a central judicial authority whose role it is to act in the wider public interest. Representing neither the interests of the prosecution nor the defence, the judicial investigator is charged with investigating evidence which exculpates, as well as incriminates the suspect, in the wider search for the “truth”.
The art of cross examination
Cross examination is perceived as the strength of the adversarial system. The idea is that through the clash of adversarial argument, the process aims to achieve a conclusion that enables the guilty, so far as possible, to be identified. For the proponents of the adversarial system, cross examination is the motor of the truth and defence lawyers should be allowed to examine and cross examine witnesses so that the reliability of their evidence can be tested.
But the reality of the way a trial is conducted presents a different picture. Witnesses are placed in a prominent position at cross examination : all eyes are on them and although they have sworn to tell the truth, the whole truth and nothing but the truth, they are constantly exhorted to confine their testimony to answering the questions they are asked, and often, if they indicate that they wish to give an explanation, it must wait until they are re-examined by their own counsel. Witnesses are supposed to play an impartial role, especially when giving expert evidence, but the reality in practice is usually otherwise. Litigators tend to shop around for experts to support partisan theory rather than accepting a neutral expert who speaks with objectivity. The strategy of “destroying witnesses” also serves to obstruct the pursuit of the truth. The use of innuendo to embarrass witnesses – most notably towards victims in cases of rape and sexual assault – led John Wigmore, a celebrated American jurist and expert on evidence law to describe the witness stand as “the slaughterhouse of reputations”.
As lawyers came to replace those they represented, the “truth” was no longer perceived as the set of facts which was revealed through the accounts of witnesses, but is now demonstrated to the court through the strategies of litigators. An example which verged on mockery of justice was the testimony of Cindy Legallant in the Subutex scandal, where she refused to answer any questions that were put to her so as to confirm her identification of drug dealers.
The jury trial
The relevance of the jury trial in such a context can thus be legitimately questioned. Another interesting analogy in relation to litigation is that of a boxing match : the jury members are the judges around the ring, keeping a count of how many points one barrister scores against his opponent, whilst being regularly interrupted by a referee. According to research by the University College London, the various participants in the jury trial are even making use of the internet to assist them, prompting the development of the term “Trial by Google.”
In fact, unless it is reined in, technology could threaten the future of jury trials. The research reveals that criminal barristers in the UK have been “googling” jurors to help them win trials, whilst jurors regularly use the internet to research defendants and are often ignorant about the rules on the use of technology when on jury duty. Judges and magistrates have also made an abuse of the use of the internet. In England, a magistrate had to step down for having “Tweeted” about the case he was hearing and in the United States, a judge was caught out adding one of the lawyers in a trial on Facebook so that they could chat about the case.
How’s that ?
The famous British judge Lord Denning states that the role of a “Judge is not a mere umpire to answer the question “How’s that ?” His object, above all, is to find out the truth, and to do justice according to law.”
In that vein, the true strength of our judiciary has always been the sense of independence of Mauritian judges. Although some will say that a shadow has recently been cast on the strength of our legal system, it should be reminded that one of the principal reasons that Mauritius is one of the few African nations which did not become a dictatorship following freedom from colonial rule, is because of the independence of our judiciary. Although the modern legal system and the Mauritian courts will face a number of challenges, let us hope that no one follows up on Dick the Butcher’s suggestion in Henry IV Part II – « The first thing we do, let’s kill all the lawyers ! «