This is a continuation of a previous post (The Real World of the Rule of Law: Courts as Oppressive Organizations, Part One). I explored how judges influence what juries define as “reasonable doubt.” As I indicated in the previous post:
The following series of posts are meant to complement the series of posts on the issue of reforming versus abolishing the police (see for example Reform or Abolition of the Police, Part One or Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism).
The following is mainly a series of quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature and enforcing the real nature of the rule of law.
A note on the limitations of the following: Ms. McBarnet draws on English and Scottish law; the situation here in Canada may be somewhat different. If anyone knows of sources relevant for determining the real operationalization of the rule of law in Canada, please provide them in the comments section.
The social-democratic left here in Toronto have little to say about the role of courts in general in oppressing members of the working class, citizens, immigrants and migrants. There are of course particular criticisms of court decisions, but there is no critique of the systemic oppression of the courts.
The Ideology of Telling the Truth Versus Legal Proof and the Construction of a Case
The common-sense view of courts is that a person is presumed innocent until proven guilty. In the previous post, it was shown that the judge influences what is sufficient evidence to convict.
Another piece of ideology or rhetoric is that witnesses, when they testify, are to provide only the truth and nothing more nor less. From page 12:
Witnesses are simply enjoined to ‘tell the truth, the whole truth and nothing but the truth’, a fine
piece of rhetoric, devastatingly naïve and blase, but also extremely powerful. … Indeed when one adds the fact that most trials take place months if not years after the incident in question, and that the court in an adversary system is presented with two conflicting versions of that incident, it becomes incredible that any jury or magistrate can ever feel that what happened has been proved beyond question. Yet in the vast majority of trials it seems they are. The philosophical problem of how one reproduces ‘reality’ thus becomes a sociological one: how is it that in such a situation of ambiguity, conflict, subjectivity, fading or moulded memories, the judges of the facts can so readily find themselves convinced beyond reasonable doubt?
Truth is hardly an issue in courts–despite rhetoric to the contrary. What actually happens (the truth or the incident) and what is presented in court usually diverge substantially.
It is from a legal point of view and not from the point of view of common sense that is important in trials: From pages 16-17:
Adversary advocacy helps solve the philosophical problem of reproducing reality quite simply by not even attempting it. Instead the search for truth is replaced by a contest between caricatures. Advocacy is not by definition about ‘truth’ or ‘reality’ or a quest for them, but about arguing a case. The concept of a case is such a fundamental part of Western legal thought that we may take it for granted, but it is a method of proof with a history of only two or three centuries, and one which provides a neat example of the abstraction which theorists oflaw under capitalism, like Pashukanis (1978), see as an essential element of the legal form. Just as the concept of the legal subject abstracts him from his real social being, so the case abstracts from the complexity of experience, and in doing so it helps solve both the practical and the ideological problems of proof.
The “case” as opposed to the truth is the central aspect of civil and criminal trials. From page 17:
An incident and a case made out about the incident are not the same thing. Conceptions of reality are multifaceted and unbounded; cases are ‘the facts’ as abstracted from this broad amorphous raw material. The good advocate grasps at complex confused reality and constructs a simple clear-cut account of it. A case is thus very much an edited version. But it is not just edited into a minimal account-a microcosm of the incident-it is an account edited with vested interests in mind. Hence the lawyer’s approach ‘that, so far as possible, only that should be revealed which supports his case’ (Napley, 1975, p. 29). Far from being ‘the truth, the whole truth and nothing but the truth’ a case is a biased construct, manipulating and editing the raw material of the witnesses’ perceptions of an incident into not so much an exhaustively accurate version of what happened as one which is advantageous to one side. In relation to an incident, then, a case is partial in both senses-partisan and incomplete. The good advocate is not concerned with reproducing incidents but producing cases, not with truth but with persuasion.
The editing of an incident arises through the twin legal aspects of proof: relevance and admissibility. From page 15:
… the problem of ‘unbounded reality’ is tackled by the notions of admissibility and relevance.
This situation applies as much to the prosecution as it does to the defense in the case of criminal charges. Despite the rhetoric of the prosecutor being “an impartial minister of justice” (page 19), the prosecutor systematically engages in the construction of a case (rather than determining the truth of an incident) in order to obtain a conviction. Pages 19-20:
… the prosecutor has a duty to give to the defence the names of witnesses whom he does not intend to call but who do have material evidence to offer (Archbold, I979, s. 433). The word ‘material’ is the
key. It indicates that the prosecutor is assumed to present a case selected for conviction rather than one that sets out all of even what he sees as the material facts. Again, the prescription for how and to
what end examination-in-chief should be conducted-‘to adduce relevant and admissible evidence to support the contention of the party who calls the witness’-makes no exception for the prosecuting
counsel (ibid., s. 512).
At the level of practice there is no doubt that prosecutors do act out the normal advocate’s role of arguing a one-sided case:
Presenting prosecutors as representatives of justice rather than as biased individuals who construct a biased case to obtain a conviction is ideological and serves to distort the real nature of legal systems (page 21):
… the notion of the prosecutor as a ‘minister of justice’ not only functions at the ideological level both in the rhetoric of the Bar as to their role, and in general to support the view of a system of justice bending over backwards to ensure the innocent are not convicted, but is also an idea that is put to good practical use by prosecutors in court to support the credibility of their cases as
opposed to the biased nature of the defence’s:
Prosecutor: Ladies and gentlemen, my function is to elicit as much evidence as possible to put before you. My friend’s is to defend his client’s best interests. I act in the public interest. (Case 103)
Representing the prosecutor as the “public’s interest” is hardly itself the truth of the situation; the prosecutor constructs a case just as much as does the defense lawyer. Consequently, the reference to “public interest” serves to hide the truth of the situation. Truth is hardly the central focus of the legal system (but, of course, if you are found lying within the legal system, you may suffer legal repercussions–despite the irrelevance of the truth often enough in legal proceedings). Page 20:
the examples throughout this book are readily supported officially by the Fisher Report on the Confait case, in which three youths-two of whom were mentally subnormal-were convicted of murder on the basis of impossible confessions-impossible, because it was subsequently proved that Confait could not possibly have died as late as the confessions alleged. But ambiguities over the time of death were
filtered out by the police and prosecution in constructing and presenting their case. Fisher (I977) notes at the prosecutor’s courtroom examination of a pathologist on the crucial issue of the time of death:
It might well be that, if Dr C. had been given sight of the other evidence and asked to reconsider his evidence in the light of it, and had been asked the relevant questions in a neutral way instead of being asked to suggest ways in which the period for the time of death could be extended after midnight, the course of the trial would have been different and an acquittal might have resulted. (Fisher, I977, p. 223)
… far from trying to make the time of death more precise, those concerned with the investigation and prosecution … made every effort to keep it as vague as possible. The reason for this was that they were concerned to establish a case which rested wholly or mainly on confessions which could not be entirely true unless the time of death was outside the brackets given by [the experts). (Ibid., p. 20)
Of course, most social democrats and social reformers will simply ignore this situation. They either ignore legal oppression altogether, or make vague assertions about “transforming the system” into “a more humane form” (see the first post in this series about such a claim by the social democrat Herman Rosenfeld here in Toronto). Social democrats, rather, rely on such vague phrases as the “rule of law” or “democratizing the law” and similar clichés to justify their reformist views (and, indeed, their lack of practical engagement in trying to change the economic, political and social structure).
But let us continue. The construction of a case rather than determining the truth limits the function of witnesses to respondents to lawyers’ questions (which are, of course, designed to elicit responses to favour their specific construction or version of the case). From page 22:
A further feature of the form of presenting proof is that it is interrogatory. Evidence is not presented directly by witnesses, but indirectly in response to questions by counsel. The rules prohibit leading questions but the very framing of a question, whether leading or not, and the context in which it occurs, set parameters on what can be an acceptable answer. The witness is a respondent, ‘he
is there to answer questions, that is all’ (Cockburn, I952, p. IO ), and the person who asks the questions is structurally very much in a position of control (Atkinson and Drew, I979) and quick to interrupt witnesses or warn them to confine themselves to the essential facts they are being asked about, or indeed merely to answer yes or no.
The construction of a case rather than the determination of the truth in court then presents only a partial contextualization of particular facts–a contextualization that excludes other facts deemed irrelevant to the construction of the case at hand. If witnesses offer facts deemed irrelevant, they may be reminded to confine themselves to answering the question asked of them. Pages 22-23:
Prosecutor [to victim] Did you know him [the defendant] previously?
Witness: Yes we had a scuffle the night before.
Prosecutor [sharply] Mr Sweeney, the question was very simple. Please answer yes or no. Don’t volunteer anything. Understand? (Case g8)
What is often a gray area of unclear and contradictory facts not only becomes presented as clear facts by either lawyer but is often stripped of the meaning given to them by witnesses. From page 23:
The questions ‘should be clear and unambiguous and as short as possible, each raising a single point’ (Walker and Walker, I975, p. 360) so particularising and abstracting the facts relevant for the case from the multiple possible facts of the incident. This style of presentation helps construct an idea of clear-cut proof, by filtering and controlling the information witnesses make available to the court, and so transforming what could emerge as an ambiguous welter of vying and uncertain perceptions into ‘the facts of the case’.
Interrogation means not just filtering potential information but imposing order and meaning upon it by the sequence and context of questions asked-whatever meaning it may have had to the witness, control by questioning can impose the meaning of the questioner. The case thus takes on its own logic within the framework of the ‘facts of the case’, and any other issues mentioned, hinted at or unknown, lose any relevancy to the meaning of the case that they may have had to the meaning of the incident.
It is not only the right (or rather obligation) of a witness to answer only questions posed by the lawyer that leads to the filtering of what happened; the right of the lawyer to sum up the “facts of the case” (and not the witness) can easily lead to a distortion of what the witness is saying. From pages 23-24:
Prosecutor: Weren’t you making as much noise as the others?
Accused: No I was trying to quieten them down.
Prosecutor: You were saying ‘Ssh’ in a whisper?
Accused: No I was saying ‘be quiet or you’ll get into
Prosecutor: And they were making a lot of noise.
Prosecutor: So you had to raise your voice so they’d hear you.
Accused: Well maybe a wee bit.
Prosecutor: So you were shouting and bawling.
Prosecutor: You just said you were! (Case 19)
The right of the advocate not just to question but to sum up-a right denied to the witnesses themselves-allows still further editing, abstraction, and imputation of meaning to be imposed on what witnesses say.
But, it may be said, the lawyer for the defense at least can do the same thing as the prosecutor (although we have already seen that prosecutors, unlike defense lawyers, use the ideological ploy of claiming to represent the “public interest”). What of the presumed need for the court to show, beyond a reasonable doubt, that the accused is guilty? In the first post, we have already shown that judges narrow proof of guilt by limiting what counts as sufficient proof of guilt.
Are the so-called legal provisions that protect the accused, such as the presumption of innocence until proven guilty, actually in truth the way they are presented as being? Or are the legal provisions more like fiction? I will pursue the matter in a future post in this series.
By the way, before my experience with a court-ordered assessment of the relationship between my daughter, Francesca, and her parents, on the one hand, and the relationship between the parents, on the other, despite calling myself a Marxist, I was naïve enough to believe that the truth was relevant in court manners. I learned the hard way–and so did my daughter indirectly–just how far from the truth court-constructed cases can be (see the series of posts with the title “A Worker’s Resistance to the Capitalist Government or State and its Representatives,” such as A Worker’s Resistance to the Capitalist Government or State and its Representatives, Part One or A Worker’s Resistance to the Capitalist Government or State and Its Representatives, Part Four). I am no longer that naïve.
The ideology that telling the truth is of prime importance in courts is just that–an ideology. What really happened and what is presented in court can diverge widely. Defense attorneys formulate a case and so too does the prosecution. The case is what is important–not the truth. The rules of evidence, for example, restrict what can be presented, and witnesses are asked questions that the defense or prosecution deems relevant to presenting the “case”–and not the truth.
And yet, on TV programs and in movies we are often presented with the proverbial “Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?”–and yet the truth is one thing that really is irrelevant at court.
But why does the left not criticize this ideology? Should not the left expose the farcical nature of various social structures, including the legal system? Why is there not discussion about the real nature of legal proceedings? Why is there too often acceptance of the illusion–the ideology–of the rule of law?
What do you think?