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Proof of fact in criminal trials
COMMENTARY-CORRESPONDENCE
0Forensic Science Society 1987
Proof of fact in criminal trials From
SS KIND
Sir: "In law, the presumption of innocence is basic" says Marcus Stone [I]. I would agree, except that my version would be the less tidy form "In the criminal trial, in a free society, the presumption of innocence is basic". But I cannot see how this idea of the criminal trial is in any way inconsistent with the view that the trial is a hypothetico-deductive process (although I wish someone would come up with a crisper name). The fact that there is one or a limited number of named defendants, together with one or more explicit charges against them, is quite simply a hypothesis of guilt. If not, what else is it? As far as the "deductive" part of the definition is concerned, I am, of course, on much shakier ground but the view is no more simplistic than that which holds that the jury comes to the trial with the belief that the defendant is no more likely to be guilty than any random member of the public at large. Long before the trial there is a watershed in the judicial process. This is when the investigator fastens his attention on an individual suspect. Until that moment he has been reasoning from a variety of particulars (clues) and trying to identify a general cause (the criminal). This is inductive reasoning. Once he has located a good suspect then a large element of deduction enters his reasoning process (too much on occasion, some might say) and information is assessed largely in terms of its relevance to the view that a certain individual is likely to be the culprit. The questions the investigator asks himself at that stage are of the variety "If my suspect is the criminal, then how do the various features of the evidence derive from this fact?" When he finally decides that he has the right man, he puts it to the court to decide. But what is it that the court decides? Not whether the investigator is right or wrong, but rather a "Yes, he is right", or a "We just don't know". It is the essential function of the presumption of innocence to turn the latter view into a verdict of "Not Guilty". If, in addition, the jury is convinced of the innocence of the accused then this is a welcome bonus but it is far in excess of the requirements necessary to return a "Not Guilty" verdict. The trial process is very complex. I feel much happier with the views of lawyers on the subject than with those of scientists, despite being a scientist myself, because lawyers have evolved their trial rules over the centuries as a practical, if rather untidy, reaction to the world as it is. 29
But in all fairness to scientists, with their tendency to produce naive interpretations of complex situations, how does a Scots lawyer reconcile his high regard for the "presumption of innocence" with the Scottish verdict "Not Proven"?
Reference 1. Stone Marcus. Proof of fact in criminal trials. Journal of the Forensic Science Society 1986; 26: 329-330.
October 1986
Forensic Science Services Ltd 7 Beckwith Road Harrogate North Yorkshire HG2 OBG
0Forensic Science Society 1987
Proof of fact in criminal trials From
SS KIND
Sir: "In law, the presumption of innocence is basic" says Marcus Stone [I]. I would agree, except that my version would be the less tidy form "In the criminal trial, in a free society, the presumption of innocence is basic". But I cannot see how this idea of the criminal trial is in any way inconsistent with the view that the trial is a hypothetico-deductive process (although I wish someone would come up with a crisper name). The fact that there is one or a limited number of named defendants, together with one or more explicit charges against them, is quite simply a hypothesis of guilt. If not, what else is it? As far as the "deductive" part of the definition is concerned, I am, of course, on much shakier ground but the view is no more simplistic than that which holds that the jury comes to the trial with the belief that the defendant is no more likely to be guilty than any random member of the public at large. Long before the trial there is a watershed in the judicial process. This is when the investigator fastens his attention on an individual suspect. Until that moment he has been reasoning from a variety of particulars (clues) and trying to identify a general cause (the criminal). This is inductive reasoning. Once he has located a good suspect then a large element of deduction enters his reasoning process (too much on occasion, some might say) and information is assessed largely in terms of its relevance to the view that a certain individual is likely to be the culprit. The questions the investigator asks himself at that stage are of the variety "If my suspect is the criminal, then how do the various features of the evidence derive from this fact?" When he finally decides that he has the right man, he puts it to the court to decide. But what is it that the court decides? Not whether the investigator is right or wrong, but rather a "Yes, he is right", or a "We just don't know". It is the essential function of the presumption of innocence to turn the latter view into a verdict of "Not Guilty". If, in addition, the jury is convinced of the innocence of the accused then this is a welcome bonus but it is far in excess of the requirements necessary to return a "Not Guilty" verdict. The trial process is very complex. I feel much happier with the views of lawyers on the subject than with those of scientists, despite being a scientist myself, because lawyers have evolved their trial rules over the centuries as a practical, if rather untidy, reaction to the world as it is. 29
But in all fairness to scientists, with their tendency to produce naive interpretations of complex situations, how does a Scots lawyer reconcile his high regard for the "presumption of innocence" with the Scottish verdict "Not Proven"?
Reference 1. Stone Marcus. Proof of fact in criminal trials. Journal of the Forensic Science Society 1986; 26: 329-330.
October 1986
Forensic Science Services Ltd 7 Beckwith Road Harrogate North Yorkshire HG2 OBG