Wednesday, January 25, 2006

Evidence

The Irish media is buzzing in the wake of the sentencing phase of a criminal case at Ennis Court, in which 11 year old Robert Holohan, died and a neighbour, Wayne O'Donoghue (20 at the time I understand) was charged with his murder. The jury acquitted on the murder charge but convicted of manslaughter. The judge in the case, imposed a four year sentence (of which one year has already been served), stating that previous judgements of his imposing harsher sentences had been reversed on appeal and he was not going to go head to head with the Court of Criminal Appeal this time. With remission he is likely to be released at the end of 2007.

Now, I'm not going to get into the two issues causing the buzz, namely the reluctance of the prosecution to introduce evidence relating to semen found on the body, and the victim impact statement delivered by the victim's mother, which is alleged to be at variance with the version shown to defence counsel, in which several allegations were made. These will be done to death by others I am sure.

What I did find worth commenting on was an article in "de Paper" quoting Paul Anthony McDermott BL as follows:

"We may need to change our laws of evidence and trust juries a bit more than we do at the moment. Juries are 12 members of the public - maybe we should put all the evidence before them.

We have some of the strictest rules of evidence anywhere in the world and a good example of that is the exclusionary rule. Any evidence obtained in breach of your constitutional rights is excluded, no matter how relevant it is, no matter how small the breach of rights in getting that evidence, no matter how the jury needs it to make a fair decision."

I know PA McD slightly and have seen him on TV - he's a very smart guy indeed. He is also qualified in law which is more than I can say. Which makes this later comment of his, defending the prosecutions reluctance to enter the semen analysis into evidence rather odd:

"The DPP must ensure that the accused person gets a fair trial and ensure he doesn’t lead a judge into making a mistake because, if he does, all that will happen is that the conviction will be overturned".

This seems like "running with the fox and hunting with the hound" to me. We have an tight exclusionary rule, managed by the judge of the case. This makes it safe to enter all the evidence, but we shouldn't do in this case in case the appellate courts reverse because the rule wasn't properly applied? The first part reads like a trenchant vote of confidence in the ability of the DPP to manage prosecutions and judges to handle exclusions and then withdraws that confidence in this case - for what reason? He actually believes this next bit or he is a mate of the prosecutor in the Holohan case and doesn't want to make him look bad? One can only hope the Examiner writer butchered the interview (wouldn't be a first) but it reads very badly as it stands.

In any case, I also doubt his assertion that juries can sort the forensic wheat from the chaff, given the devotion of juries in the United States to CSI, treating with scepticism any unfortunate coroner without a Jerry Bruckheimer forensic lab, one can understand why there was uncertainty on the DPP's side, even on DNA evidence which the public has come to think is bulletproof.
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