Lawyers ask: can Adrian Bayley, alleged murderer of ABC reporter Jill Meagher, get a fair trial? They don't ask whether trials are fair for victims, police, and taxpayers who fund the system.
The Hon Russell Fox QC researched the law for 11 years. He concluded:
- Justice means fairness.
- Fairness and morality require a search for the truth, otherwise the wrong side may win.
- Truth means reality, what actually happened.
A few untrained judges in London (pop. c. 25,000) rejected a truth-seeking (inquisitorial) system in 1219.
Two early truth-defeating devices in England and its colonies were:
1. Lawyer-control. The civil adversary system dates from 1460, when lawyers began to take control of civil evidence. In this system, lawyers are allowed to use sophistry – trickquestions, false arguments etc – to make honest witnesses look unreliable. Lawyers also have an incentive to prolong the process: $300+ today.
2. Conspiracies concealed. Legal professional privilege has concealed evidence of conspiracy between lawyers and their criminal clients since 1577. The privilege protects the guilty, but not the innocent.
Lawyers first began to defend criminals (and take charge of and prolong criminal evidence) in the 18th century. Since then, judges (still untrained) have invented another six truth-defeating devices:
3. Suspects' evidence concealed. The privilegeagainst self-incrimination, (including the right of silence) is based on a lie by the first legal academic, William Blackstone.
The privilege became part of the US Bill of Rights in 1791, but did not become a principle of the common law until about 1850. It protects the guilty but not the innocent. About half the guilty who refuse to give evidence are found not guilty.
4. Hearsay concealed. Second-hand evidenceis concealed because the original speaker is not available for cross-examination. Neither are the judges who made the rule.
Hearsay should be weighed, not concealed. For example, evidence was concealed that Nicole Simpson made a phone call to a refuge five days before she was murdered and said O. J. Simpson was stalking her and that she was afraid.
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