more judges, less lawyers.

In a recent interview the journalist Evan Whitton challenges the sacred cows of our legal system. He takes on ideas such as the right to silence, the notion of precedent, plea bargaining and client/lawyer privilege. In short order he turns some of our most treasured legal traditions on their heads and casts them as liabilities rather than assets. He says our system of justice favours too much the role of lawyers and is as a consequence excessively expensive, lets too many guilty people walk free and sends too many innocent people to prison. And he does what I thought was a reasonable job of arguing his case. I thought it was well worth shareing and I’d be interested in reactions.

Read it in full or listen here.

15 thoughts on “more judges, less lawyers.

  1. It’s not as clear cut as Whitton makes out, although he has some good arguments.

    I disagree with him about the right to silence. It’s very easy to say something that comes out the wrong way and is viewed as incriminating. Most people (about 90%) convicted in Australia confess to the offence.

    Even in the Roman (French/German) system, silence is often a good policy. The only difference is that it will be interpreted negatively.

  2. Jesus Christ! If this guy can go as unchallenged as he has, Australian libertarianism must be pretty piss poor.

  3. I have a lot of respect for Evan Whitton and I think his ideas on many possible reforms such as revealing criminal history of those accused, and denying the right to silence, is quite astute.
    However here I think he goes slightly too far in leaving it all to the judges with regards to the disclosure of evidence.
    It is true that under the current system a lot of relevant evidence is denied exposure due to lawyer cunning but I should think a simple resolution is to deny the right of judges to exclude evidence but otherwise leave it somewhat as it is now.

    Considering the history of activist judges over the last thirty years (and possibly more) I think it would be insane to grant judges so much power. If a judge is sympathetic to the accused because of his sexual orientation, ethnicity, religion, gender, circumstances, or because, as all intelligent people should know, society is to blame, then there is going to be a lot of foot dragging in his/her search for incriminating evidence against the accused. Ditto antagonistic for the same and different reasons in the search for exculpating evidence.

    If you were falsely accused of a crime and eventually convicted, as tragic as that would be, it would be at least some consolation to know that your lawyer did everything he could to present all evidence and argument to the jury. However how would an innocent be expected to feel if he was unjustly sent down for a crime and not even being allowed to stand before a jury of (only) his peers and give (through his barrister) his side of the story and his defence evidence.

  4. There is only one reason you would admit evidence of a persons past acts which is to judge him by those acts. Whether you want to admit this so-called propensity evidence has nothing to do with efficiency. It is a moral question. If you think it is fair than go-ahead and allow it but your claims to a legal system based on fairness are much reduced.
    It is also impossible to draw the line on what on what past acts are relevant or not.

    What many of the critics do not seem to realise is that when an accused can give evidence and long as they are a competent they can be quite effective in their defence. However an accused with an extensive criminal record cannot usually be a witness in their own defence because that criminal record can than be put in issue. Courts and juries usually draw a negative inference from the failure of an accused to give evidence and so the disadvantage to the prosecution is greatly overstated by these critics.

  5. “However an accused with an extensive criminal record cannot usually be a witness in their own defence because that criminal record can than be put in issue.”

    Only with regards to credibility. Evidence still must relate to the facts.

    I favour a combination of the civil and common law.

  6. “However an accused with an extensive criminal record cannot usually be a witness in their own defence because that criminal record can than be put in issue.”

    Err… Not so, Shag. The career crim can give evidence but it would be unwise to allude to his good character. In that instance alone, the prosecution can then introduce evidence to counter the allegations that the defendant is an upstanding person. Apart from that, the accused can say whatever he wants to and still keep his dark secret from the jury.

    BTW
    “…go-ahead and allow it(propensity evidence) but your claims to a legal system based on fairness are much reduced.”
    You don’t think you might need to supply a REASON why you think fairness is reduced?

  7. Err…Err… not so comrades. Thanks for the clarification but what I said was still correct in that the criminal history of an accused can be put into issue. How so?

    * Generally, judge always has discretion to admit in accordance with the act as below
    * Where the accused inadvertently mentions it
    * As you both describe above where character based issues arise and some other bases that go to credit
    * By the accused’s own imputations against witnesses
    * s94 admissions – Propensity or more correctly tendency and coincidence evidence (Which can occur in any trial context, not just cross) if the evidence proves facts in issue and the rest part 3.6
    * Co-accused giving evidence

  8. Whitton is treating the right to freedom of speech in the same way as the government treats the right to vote. If you have the right to vote, you have the right to choose not to do so. To have the right to freedom of speech, then you have the right to choose not to make any statement.

    While I tend to agree that the legal system has gone mad the right ton freedom of speech has to include the right to remain silent. Its basic.

    Its sort of reminiscent of those old images of the Gestapo with the caption changed to; “Ve haf vays of making you exercise your freedom of speech.”

  9. Jim,
    I don’t think losing the right to silence is going to lead to waterboarding. What it will mean is that if the accused refuses to answer police questions then that fact itself can be used in court against the defendant.
    With regards to principles of free speech whatever, if you are going to uphold that then it would follow that no one could ever be subpoenaed to give evidence at court. The judicial process would then really grind to a halt.

    It now seems strange that all innocent witnesses to facts about a crime are denied that ‘right to silence’, while the actual person suspected of committing the crime is the only one who is allowed it.

  10. Lord Shag – it’s still very limited. You may be a barrister or having experience, but I’ve sat on a criminal trial. All the legal practitioners clamped down on that and we were’nt allowed to see a lot of the admission procedure or listen to the argument. This was a from a conservative judge who is “tough on crims” and a very formidable Crown prosecutor.

  11. Well that is correct SL libertarian they do clamp down and for good reason and in my first first post I probably do by virtue of my language tend to give such admissions a more broader application than they deserve. But the point I make is that much of the talk is from authoritarian individuals who are disingenuous and do not disclose that there is give and take in the CL trial procedure and that it is not as they say.

    The twin issues of silence and admission of past behaviour are related but separate issues in my opinion and both are moral issues. Firstly is it right to coerce one to speak in the same way it is right to coerce one to vote? Secondly if the purpose of the CL trial is to establish the truth (which despite the ravings of the fascisti is its purpose) then why would you admit facts that do not tell you the truth? Now Phillip states at the end of his earlier post that I don’t supply a reason for reduced fairness and he is right to make that point for which i apologise; my reason for that claim lay above in that those admissions do not tell the truth hence the unfairness.

  12. My experience tells me we need more detective work and less lawyering. Because you get into court and the lawyers encourage their clients to lie, and the judges don’t care.

    Judges are deluded people. They think they know things that they cannot possibly know. So that for most things there ought to be a quick hearing where accusations are all spelled out. Then detective work that can contradict these lies ought to be able to go forth.

    We ought to build a tier under the current legal system. A tier that has a high bias to getting at the truth, before any appeal can hand-ball it up to the legacy legal system.

    Imagine the delusional nature of people who think they can determine the truth by way of unbacked statements, cobbled together under the advice of lawyers? Its a scandal. The whole thing is an artificial support system for lawyer-incomes. This ought to be considered a major embarrassment to our pretensions of a free society.

  13. I’ve just listened to Evan Whitton and he’s right on top of it. This ought not be a tangential issue for libertarians. We ought to be against all types of parasitism, and be in favor of all types of justice.

  14. Graeme,
    You’re onto something about people lying and the judges don’t seem to care.
    Apparently it is very common for people (the claimant, the accused or witnesses) to be caught out lying and yet nothing is ultimately done about the perjury. The big HCA double jeopardy case R v Carroll back in 2002 was ultimately about the killer being convicted for perjury (because due to the loopholes in the legal system, it was all they could then get him on. CF. Alger Hiss in the 1950s). There were no proven errors of law in that perjury trial and yet the High Court of Australia allowed the appeal. In essence they were saying that there was no harm for the accused to fib on the stand.
    I think the govt. could help clean up the system to some degree by actively prosecuting all those caught perjuring themselves in court.
    Also I don’t know why entrapment should not be allowed. For some bizarre reason all incriminating evidence found by the state must be shown to the accused. (I can understand exculpating). Why on earth must the prosecution be forced to show its hand so that the accused will be given time to manufacture an excuse / alibi?
    I think it would facilitate justice if the prosecution were allowed to ask the accused a question under oath while not revealing they already knew the true answer, and then waiting for a possible dishonest answer which would then be evidence of guilt.

  15. “Why on earth must the prosecution be forced to show its hand so that the accused will be given time to manufacture an excuse / alibi?”

    Surely by the same logic you should be tried at your arrest and have a competent defence barrister at hand.

    “I think it would facilitate justice if the prosecution were allowed to ask the accused a question under oath while not revealing they already knew the true answer, and then waiting for a possible dishonest answer which would then be evidence of guilt.”

    Good lawyers can do this already.

    “I think the govt. could help clean up the system to some degree by actively prosecuting all those caught perjuring themselves in court.”

    That’s true, but you would need to prove it separately.

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