Features

Ines Shennan looks at the various ways humans have established guilt over the ages, be it feeding supposed witches cake or encouraging dastardly defendants to pluck stones from hot oil. It makes our well known modern day jury trial seem beyond reproach – but is it really all it’s cracked up to be?

“Crime doesn’t pay.”

This statement strikes at the core of our justice system: commit a wrong, and justice will be served (although whether or not that is always the case is up for debate, particularly given the embedded assumptions within our criminal system of what “criminality” and “justice” are). What this feature hopes to unpack is our longstanding fascination with accountability for crime, or the trialing of the accused. As it turns out, we used to do some pretty weird stuff back in the day. Hindsight really is an enlightening thing.

Switch on the television news, ruffle up a newspaper or open your web browser and crime-related stories are quick to pop up. They command a special kind of attention, blending feelings of contempt with those of morbid fascination. Criminal activity may not be glamorous, but that hasn’t stopped it from being presented as such. The climax of this simmering collection is one of the most dearly loved mainstays of our criminal system: the jury trial.

However, the jury trial is not the beginning, the end and everything in between. Centuries ago there were numerous methods employed by those standing in judgement of others, often physically startling and devoid of logic. We’ll take a dive into these curious methods of proving guilt (or, contrary to our present presumption, proving innocence) and compare them with our current system. We’re no longer barbaric – we have stopped forcing the accused to walk over hot coals, for instance –but is our present jury trial system the best it could be?

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The term “trial by ordeal” sounds daunting in and of itself, but doesn’t even begin to accurately convey the extent of the barbarity involved. A form that emerged in late antiquity and the early Medieval period, trial by ordeal encompassed a range of practices that attempted to determine the committer of a crime. In some cases, guilt was assumed, and it was up to the accused party to prove their innocence. Ordeals of fire and water were physically intensive, whilst the ordeal of ingestion was psychologically-driven and required an oath from the accused.

The ordeal of ingestion relied on superstition and the sense of importance attached to solemn oaths to convince someone who “knew” themselves to be guilty of a crime to confess. If they failed to do so, they were taunted with the threat of succumbing to the wrath of divine intervention (with the promise of death in the near future) or choking on food such as dry bread.

It’s a shame that in this pre-Medieval age, no-one thought to toss the bread over a fire and make some croutons (the ideal way to salvage stale bread). But we’ll let it slide; the only thing that could salvage your reputation (and likely your life) in these cases had a distinctly religious flavour, and if you were a believer – and guilty – then you were in for a rough ride. Still, we should probably give “trial by ingestion” some credit for embracing the presumption of innocence.

Less willing to embrace such a presumption, however, were the ordeals of fire and water: forcing the accused to prove their innocence by way of a physically gruelling challenge. You could think of it rather like a Medieval Bear Grylls risking severe blistering or the possibility of drowning – although in this case, the accused’s very liberty was at stake and there was no lucrative media franchise hungrily exploiting their carefully executed steps.

Ordeals of fire required a casual saunter across red-hot irons or other metal instruments. Now I’m no science major, but I did pay enough attention in school to know that metal conducts heat very well, and that if you get it nice and hot under a flame it’s probably not something you’d like to come into contact with your skin. If you were a criminal suspect back in the day, though, that was tough – you had to get those tootsies out and take a stroll. Either you’d come out unharmed (innocent), or harmed, in which case your bubbling, blistering feet would be left for several days before being tended to. If they healed well, that was taken to be proof of innocence. If they appeared a festering mess, on the other hand, that was the end of the road for you. (Too bad if you have a condition that made your skin particularly susceptible to infection; that would point straight to your clear lack of morality. Sorry ‘bout that.)

I don’t know about you, but ever since watching Titanic something about large, flat bodies of cold water has scared me. During Henry II’s reign, the “trial by water” was legally established as the appropriate method for evaluating the suspected guilt of serious offenders (such as murderers or robbers).

This was no simple swimming exercise. Instead, the feet and hands were bound, and the accused was rolled into, or held beneath, bodies of cold water such as a fast-running stream. Sometimes they were even placed in a barrel or weighted down. Analysis of the result – which, simply, was either death or survival – varied. In some cases, survival indicated innocence (well done, you passed the test, your Post Traumatic Stress is not our problem) while sinking confirmed guilt. In later periods, however (such as the infamous witch-hunting centuries) floating could indicate witchcraft. Apparently, the ability to float had something to do with the devil. Too bad if you’re innocent – you might not be deemed a witch, but in preserving your reputation you booked yourself a one-way ticket to the riverbed.

Let’s delve a little deeper into the stuff about the witches. The witch-hunts, most prevalent in the early Modern period, highlight the extent to which mass panic about a perceived threat can escalate out of control. In this case, the perceived threat was that posed by Satanic witches to Christianity in Europe (and some colonies).

The Salem Witch Trials in the late seventeenth century, despite bearing some resemblance to modern-day “trials,” were far from fastidious in their treatment of the accused, invoking all kinds of strange rituals to prove they had a witch on their hands that was capable of all kinds of malarky. Those suspected of witchin’ around may have found themselves subjected to a “touch test,” in which they were blindfolded and forced to place their hands on one of their supposed victims who, conveniently, was suffering from a fit. If the fit stopped, then it was accepted that the accused must have been the one to cause it in the first place (by means of a “venom” passing through their hands and into the victim). Imagine if that same logic were applied today! Physiotherapists, podiatrists and proctologists could be collectivity known as witches of the body, feet and … I’ll leave the rest up to you.

In other parts, feeding a dog a cake made with the urine of an alleged witch’s victims would supposedly identify the witch by causing her to cry out in pain. So there we go: before we had teacakes we had wee cakes for the wild witches. It’s worth noting that witch-hunts are a continuing phenomenon. For example, Human Rights Watch notes that “witchcraft” remains a criminal offence in Saudi Arabia, for which there have been prosecutions as late as 2011. (It is dubious, however, whether such prosecutions are the result of genuinely held fears of sorcery, or are merely a means of political oppression.)

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We’re now pretty much up to speed with the twenty-first century. New Zealand’s present-day adversarial system (which is also used in many other common law countries) has the effect of pitting one side against the other. In the case of a criminal hearing, that means the accused against the state. By way of comparison, an inquisitorial system (such as is used in France) sees an instructing judge, or law enforcement figures, taking an active role in discerning the “true” facts of the case.

Our system still harnesses that “fact-finding” idea (the judge is the finder of law and, if the case warrants a jury, takes on the fact finding role), but it marks a clearer division between the two parties (i.e., the prosecution and the defence, if it’s a criminal hearing) who present the evidence and the impartial judge who makes judgments as to its admissibility before evaluating it or allowing it to go to the jury.

Some might argue that the state today has an “easier” job, what with the immense resources it commands. However, states also bear the burden of proof; that is, they must prove that the accused is guilty beyond reasonable doubt, rather than the accused having to prove their innocence. (There are exceptions to this, however, where irrefutable and refutable presumptions exist. For instance, blood alcohol testing is assumed to be accurate, and possession of specific quantities of illicit drugs is presumed to establish guilt. Such cases are the exception rather than the rule, though, and are not simply “free passes” for the prosecution.)

Then there is the “buying your way out” type of argument, hinged upon the premise that some of the most experienced and articulate trial lawyers have a knack for getting people “off the hook.” Perhaps there’s a grain of truth to this – a more experienced lawyer with an affinity for oral persuasion may well have the technical and theatrical experience to present arguments to the jury that a less-experienced lawyer with a less persuasive tone would fail to pull off. Some of New Zealand’s most high profile criminal prosecutors and defence lawyers have a commanding charm about them. Many have gained a cult-like status as masters of their field, and rightly so.

However the notion that you can always buy your way out if you have enough money is not necessarily the case. There are always other factors at play, including the “risk” that a jury simply doesn’t like the accused. This does not mean that the jury has some God-given right to deliver a guilty verdict; but given that New Zealand deeply protects the privacy of what happens behind the jury room door, and the inherent “humanness” of jury members, there is always the chance that the jury will see things a certain way and feel happy moulding the evidence to fit with their expectations.

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Speaking with Law Faculty Dean Mark Henaghan, it doesn’t take long to uncover his take on our contemporary jury system, in its adversarial context. “I love the jury,” Henaghan blurts out. He believes it should be “seen as a really important public function rather than an irritant,” and is confident that, for the most part, jurors take their role “very seriously.” Recognising inherent human biases, he points out that it’s preferable to have 12 people deciding on someone’s fate than one lone judge, because this allows for a “range of perspectives, [which] one person can never have.” He notes that “no human decision making can be perfect” – a reality that supports the idea of employing a wider spread of opinions in the shaping of a final verdict.

What about a jury’s ability to be influenced by an accused’s outward appearance and demeanour? Henaghan is quick to respond that juries are swayed by “everything” – everything that happens in a courtroom (such as the way the various advocates present their cases) can impact the outcome of a trial, not just the jury’s impression of the defendant.

It comes back to an essential part of being human, with Henaghan pointing out that people are swayed by the entirety of their surroundings. As such, while a jury might harbour feelings of favour or suspicion towards someone on the stand, such feels are inextricably tied up in the fact that jurors are human, something that is also true of judges. Neither could we rely on technology to come to a verdict, says Henaghan, because human emotion is part of the trial process. He freely admits that sometimes juries “apply their own sense of mercy,” but insists that this is “not a bad thing.”

Henaghan believes that the adversarial system, just like the jury system, is well-suited. He points out that “both sides get a full go,” just as both sides’ witnesses are “tested by cross-examination,” with trial lawyers incredibly well-prepared to argue their side. An inquisitorial system is “more dangerous” in the way it puts “all power in the judge’s hands” and assumes that somehow the truth will magically appear, when in reality it is “very hard to reconstruct what happened.”

Whilst Henaghan feels comfortable praising our present arrangements, he admits that “when you pull it all down, no system’s perfect.” In terms of trying to make the system better, Henaghan suggests that more preemptive education – perhaps at the high-school level – about the jury system could benefit society by reinforcing its importance as a civic duty. Further, he emphasises the need to supply the jury system with adequate resources – such as financial and emotional support for the jurors themselves – when dealing with serious crimes.

A jury trial is a trial by peers or, as Henaghan excitedly exclaims, “democracy in action.” It brings a (arguably) more human element into a legal process dominated by those with legal training or caught up in law enforcement, and is a staple of our criminal justice system. While the system has recently been caught up in a raft of changes (such as increasing the possible minimum imprisonment term to two years if one is to elect a jury trial), its existence remains intact.

Yes, it does rely on 12 people deciding an accused person’s fate, and in some cases a single judge may well be in a better position to evaluate the situation – in fraud cases with excessive documentation, for example. Additionally, whilst 12 people will have preconceived notions of “right” and “wrong” that they cannot logically separate from their decision-making, such a system remains safer than one in which District Court or High Court judges make unilateral decisions.

For that reason, it’s admirable that we still make a jury by our peers a right under the Bill of Rights. Despite its inherently human flaws, this is also the system’s key strength. It is a far better way to evaluate the strength of a criminal charge than relying on superstition, outlandish physical tests or a fear of witchcraft.