14 January 2009

Is Honesty Prejudicial?

"A robbery victim saw one of her alleged attackers cleared on Tuesday because the judge said she was too honest to give evidence", reports the Metro in, "[j]udge axes trial as victim is 'too honest' to give evidence".

The story is interesting but it doesn't provide any legal analysis.

Firstly, for a trial to be lawful, it has to be fair. Secondly, when admitting evidence into a trial there has to be a balance between its probitive value and its prejudicial value (so that the resutling trial is fair).

This is what appears to have happened in this case.

Read the article and you'll see that it was her word against his. And that was it. There was no further evidence.

In the case in hand I have no reason to doubt the veracity of her evidence.

But just imagine a situation where it is your word against someone else's. Imagine that you aren't as intelligent or articulate as you most probably are and the other person is articulate. They come across as honest; they come across as though butter wouldn't melt in their mouths. Now, would you say that you had a fair trial in this situation if the other person was lying? Can you see how their evidence would be more prejudicial than probative?

A big plus for justice and credit to Mr Justice Tabor - this was the right decision.

However, I can appreciate that Ms Dawson (the woman who was robbed) may not think so.

Lastly authorities: the 'trial to be lawful has to be fair' and the 'probitive vs prejudicial' stuff are from R v Sang [1979] UKHL 3 where Lord Diplock says,

"A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and, as a corrollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; ..."

Update: Here's what the Telegraph has to say, "Robbery trial collapses after judge finds victim 'too believable'.

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