Continuation Part 13: Amanda Knox/Raffaele Sollecito

[Samson]

Apparently an apologist for unfairness. Almost the same as an appeaser.

The funny thing is that the ECHR seems to make sense to Americans and in fact I wish some of their ideas (such as confessions without a defense lawyer present inadmissible) would be adopted in the US.

Thanks for the link Samson, here's an extended quote below.

Seems like the professor Head recognizes the trial was "flawed" and "troubling", but then somehow manages to retreat into an obtuse fog of academic solipsism. The professor is able to see "flaws" in the process, but seems untroubled by the lack of evidence and open malfeasance in the manufacture of false evidence and bogus witnesses, and suppressed exculpatory evidence. The professor fails to see corruption, where it plainly is apparent.and Th is is not Italian justice as it is by law, but how it was corrupted in practice. All I can say on Prof Head's behalf is, thank god for tenure -

It is my prevailing interest in the case to develop the theme that what scientists and engineers have discovered the legal profession has buried, and for me, anglolawyer demonstrates the exception proving the rule. There are far more anonymous lawyers on PMF and TJMK than here or IIP as far as I can see.

Independent American legal eagles I can think of ,as opposed to Heavey, Cantwell, Simon, include Nancy Grace, Paul Dershowitz, Ann Coulter, Paul Callan, Julian Ku*, who promote the supremacy of law, or outright guilt.

* He may claim no skin in the game, but to even comment I would expect him to do preparatory research.

 

[Numbers]

It is my prevailing interest in the case to develop the theme that what scientists and engineers have discovered the legal profession has buried, and for me, anglolawyer demonstrates the exception proving the rule. There are far more anonymous lawyers on PMF and TJMK than here or IIP as far as I can see.

Independent American legal eagles I can think of ,as opposed to Heavey, Cantwell, Simon, include Nancy Grace, Paul Dershowitz, Ann Coulter, Paul Callan, Julian Ku*, who promote the supremacy of law, or outright guilt.

* He may claim no skin in the game, but to even comment I would expect him to do preparatory research.

In an attempt to be fair to lawyers (not a generally popular group, perhaps),
consider the small sampling of the population you are examining. I suggest that most lawyers (ethical ones) don't speak up about cases they haven't studied (researched)*, and in the Amanda Knox - Raffaele Sollecito case we observe a number of "media hound" lawyers who have not looked that deeply into the case but derive ego and/or financial benefit from spouting their ill-informed views. Don't some of the media hounds find that controversial statements pay off for them? They are the law profession's equivalent of tabloids.

ETA: * Or have not been paid to look into!
Also, many lawyers may not have an interest in criminal law or human rights beyond that of "regular folks." We have a family friend who is a lawyer, but her interest is largely commercial real estate; she was forced into semi-retirement by the "great recession" recently supposedly passed. When I discussed this case with her, she said "Cops lie." Then she rolled her eyes a bit (and almost yawned) as I proceeded to go into details. (But I can sometimes be boring.)

 

[Numbers]

LYAPIN v. RUSSIA 46956/09 24/07/2014

114. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen, cited above, § 89).

Commentary: This 2014 statement from the ECHR suggests that, since both Amanda and Raffaele experienced “Treatment…breaking their physical or psychological resistance, or...such as to drive the victim to act against his will or conscience,” they each may have strong violation of Article 3 (substantive aspect - degrading treatment) claims against Italy.

 

[Desert Fox]

It is my prevailing interest in the case to develop the theme that what scientists and engineers have discovered the legal profession has buried, and for me, anglolawyer demonstrates the exception proving the rule. There are far more anonymous lawyers on PMF and TJMK than here or IIP as far as I can see.

Independent American legal eagles I can think of ,as opposed to Heavey, Cantwell, Simon, include Nancy Grace, Paul Dershowitz, Ann Coulter, Paul Callan, Julian Ku*, who promote the supremacy of law, or outright guilt.

* He may claim no skin in the game, but to even comment I would expect him to do preparatory research.

In an attempt to be fair to lawyers (not a generally popular group, perhaps),
consider the small sampling of the population you are examining. I suggest that most lawyers (ethical ones) don't speak up about cases they haven't studied (researched), and in the Amanda Knox - Raffaele Sollecito case we observe a number of "media hound" lawyers who have not looked that deeply into the case but derive ego and/or financial benefit from spouting their ill-informed views. Don't some of the media hounds find that controversial statements pay off for them? They are the law profession's equivalent of tabloids.

I would also argue that everybody is guilty in Navy Grace's eyes and Paul Dershowitz can be bought and paid for.

 

[Samson]

In an attempt to be fair to lawyers (not a generally popular group, perhaps),
consider the small sampling of the population you are examining. I suggest that most lawyers (ethical ones) don't speak up about cases they haven't studied (researched), and in the Amanda Knox - Raffaele Sollecito case we observe a number of "media hound" lawyers who have not looked that deeply into the case but derive ego and/or financial benefit from spouting their ill-informed views. Don't some of the media hounds find that controversial statements pay off for them? They are the law profession's equivalent of tabloids.

I agree that my sample is very small and from recollection, but I do believe there is fertile ground for scholarship with more research. After all, it is very grave if the legal profession achieves the opposite of justice in these rare cases because the system is structurally unfit fit for purpose.

The Sarah Scazzi case and this one afford scant hope for the Italians. Contrary to what the PMFers say, I am convinced there is no chance Knox and Sollecito would have been suspects in America.

eta I should allow Americans here to make that call

 

[Planigale]

LondonJohn or anglolawyer,

Would one of you clarify one thing for me? In Britain can the police ever say that if you are silent, that your silence can be used against you in some sense? I seem to recall this from some conversation or another.

The caution is of the form;
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Points from police and criminal evidence act

' 23. You should note that an informal discussion can be an "interview" within the meaning of Code C. A conversation will constitute an interview if a suspect is being asked to incriminate himself. Also, since Code C refers to "any questioning", a single question can amount to an interview.

24. If you fail to caution a person but still question them about their involvement/suspected involvement in an offence, this is still an "interview". However, any evidence contained in the interview may not be admissible. '

And to prempt other questions

" 29. Persons being interviewed in connection with offences have a right to consult privately with a solicitor. They can choose to do so in person or by telephone. You should inform the suspect of this right when you arrange the interview and before the interview starts.

30. Suspects who are not interviewed at a police station are not entitled to free legal advice under the ‘duty solicitor’ scheme. If the witness asks for legal advice, however, an interview may not continue until it has been obtained.

31. Where a solicitor has been consulted and is available, s/he must be allowed to be present at the interview. "

Detailed explanation can be found http://www.app.college.police.uk/app-content/investigations/investigative-interviewing/

 

[LondonJohn]

The caution is of the form;
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Points from police and criminal evidence act

' 23. You should note that an informal discussion can be an "interview" within the meaning of Code C. A conversation will constitute an interview if a suspect is being asked to incriminate himself. Also, since Code C refers to "any questioning", a single question can amount to an interview.

24. If you fail to caution a person but still question them about their involvement/suspected involvement in an offence, this is still an "interview". However, any evidence contained in the interview may not be admissible. '

And to prempt other questions

" 29. Persons being interviewed in connection with offences have a right to consult privately with a solicitor. They can choose to do so in person or by telephone. You should inform the suspect of this right when you arrange the interview and before the interview starts.

30. Suspects who are not interviewed at a police station are not entitled to free legal advice under the ‘duty solicitor’ scheme. If the witness asks for legal advice, however, an interview may not continue until it has been obtained.

31. Where a solicitor has been consulted and is available, s/he must be allowed to be present at the interview. "

Detailed explanation can be found http://www.app.college.police.uk/app-content/investigations/investigative-interviewing/

The whole addition to the caution about allowing courts to draw inferences from silence in question is somewhat semantic and technical. In the past, the nature of the caution (i.e. "right to remain silent") meant that it was ruled that courts were simply not allowed at all to draw any inferences if, for example, a suspect had said nothing under police questioning when arrested, but had subsequently claimed an alibi etc. So the caution was changed in order to allow the courts the possibility of drawing inferences if they so wished.

However, in practice it's extremely rare that courts will reasonably be entitled to draw any adverse inferences from a defendant's silence under police questioning. Any decent defence lawyer will be able to point out that an arrest and police interview is a traumatic event for the suspect, meaning that the risk to the suspect of false self-incrimination outweighs the desire to give the police an on-the-spot explanation. In addition, the accused has the right to see the full case against him/her before providing a defence. FOr these reasons, it's extremely unusual for a court to reasonably use silence in interview as a negative factor against the accused. But the change in the caution at least gives the court a theoretical right to do so.

 

[Desert Fox]

I agree that my sample is very small and from recollection, but I do believe there is fertile ground for scholarship with more research. After all, it is very grave if the legal profession achieves the opposite of justice in these rare cases because the system is structurally unfit fit for purpose.

The Sarah Scazzi case and this one afford scant hope for the Italians. Contrary to what the PMFers say, I am convinced there is no chance Knox and Sollecito would have been suspects in America.

eta I should allow Americans here to make that call

I am not so sure. . . .Look at the cases of David Camm or Russ Faria

 

[carbonjam72]

I am not so sure. . . .Look at the cases of David Camm or Russ Faria

Not familiar about those cases, but what were the social backgrounds of the people in those cases?

Plus, where in the country might it have happened? Closer to home and the parents might have prevented a repeated week-long police grilling like that, or gotten a lawyer there sooner.

And what US police would have destroyed the computers, with held DNA files, miscounted shoe print rings, secretly recorded tens of thousands of phone calls - but not the the "confessions" - , have done all these things and expect not to go to jail?

Everything worked against Amanda because she was a foreigner in a foreign country, didn't speak the language, and had the misfortune of crossing paths with a manifest madman in Giuliano Mignini.

I don't think you can separate the trajectory of this case from Mignini and Italy. The evidence of a lone attacker and of Guede's guilt was overwhelming. The locality doesn't change that, the only question is whether there is sufficient oversight, and support for the suspects, so as to reign in the most abusive practices of the rogue prosecutor.

Does anyone doubt that without amanda's confused "statement" of Nov 5/6, that an arrest would have occurred?

In some ways I think the arrests were made to preempt the lab results, which would have pointed to a fourth unknown male. A far easier story to believe out of the gate. But once the Amanda story got into the press, then everything shifted to reinforce that belief. Imagine if the DNA result from Nov 6th of a 4th male had been known first?

 

[Desert Fox]

Not familiar about those cases, but what were the social backgrounds of the people in those cases?

Plus, where in the country might it have happened? Closer to home and the parents might have prevented a repeated week-long police grilling like that, or gotten a lawyer there sooner.

And what US police would have destroyed the computers, with held DNA files, miscounted shoe print rings, secretly recorded tens of thousands of phone calls - but not the the "confessions" - , have done all these things and expect not to go to jail?

Everything worked against Amanda because she was a foreigner in a foreign country, didn't speak the language, and had the misfortune of crossing paths with a manifest madman in Giuliano Mignini.

I don't think you can separate the trajectory of this case from Mignini and Italy. The evidence of a lone attacker and of Guede's guilt was overwhelming. The locality doesn't change that, the only question is whether there is sufficient oversight, and support for the suspects, so as to reign in the most abusive practices of the rogue prosecutor.

Does anyone doubt that without amanda's confused "statement" of Nov 5/6, that an arrest would have occurred?

In some ways I think the arrests were made to preempt the lab results, which would have pointed to a fourth unknown male. A far easier story to believe out of the gate. But once the Amanda story got into the press, then everything shifted to reinforce that belief. Imagine if the DNA result from Nov 6th of a 4th male had been known first?

All I am really arguing is that there are cases in the US where there is no (false) confession yet the defendants are convicted of murder but there is strong evidence of innocence.

I think in the US, it very well might have taken a slightly different turn due to the way the legal systems work but very well Amanda and Raff could have been convicted. The one item that might have changes is that US (including state) prosecutions due to to be very cautious involving cases involving international defendants. There are also multiple irregularities which in a US court would likely have resulted in a mistrial. Evidence was presented that should likely have never been presented for example.

Still, David Camm has some specific similarities. He was at a basketball game and when he came home, his wife and children were dead at or inside the vehicle. Even though he had an alibi with multiple people, there was voodoo blood splatter evidence used against him (the claim was that it had to be high velocity.)

It also turned out that a black man did the crime. There was plenty of evidence at the crime scene of the black male including DNA and a prison (yes, prison) sweatshirt with his nickname at the crime scene. As soon as it was revealed that he was involved, the prosecution barely skipped a beat and put the two together.

 

[Diocletus]

Another American law scholar weighs in.

Quote:

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

and

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Link: http://today.ku.edu/2015/01/28/law-...knox-trial-showed-lack-understanding-problems

Once more a "fine" legal mind sees plenty of trees but can't see that wood. Astounding for someone who claims the case "really grabbed my interest".

I found the part about the system not being prepared for an overly aggressive prosecutor to be interesting. Mr. Head might want to consider why the prosecutor was so motivated.

I also found this part interesting:

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Hm. Let's see. My expectations of criminal procedure are: following the system's own rules (as established by its internal laws, constitution and international treaty obligations), and institutional honesty, lack of bias and basic fairness. I don't have any difficulty "translating" them, it's just that they didn't happen.

 

[lonepinealex]

Not familiar about those cases, but what were the social backgrounds of the people in those cases?

I don't know much about David Camm, but Russ Faria is one of the clearest examples of a wrongful conviction I've seen since the Kercher case. The guy has a rock solid alibi!

As far as I can tell, he is middle class. He's white, was employed, no history of crime. It all happened in his own home. His problem was an out of control prosecutor who wouldn't budge in the face of evidence and an investigation that leaped to a conclusion. Very similar to the Kercher case in that sense. Apparently the law enforcement in his county is notoriously corrupt too...

 

[Chris_Halkides]

tenuous connection

In "Criminal Procedure in Transition: Observations on Legal Transplantation and Italy’s Handling of the Amanda Knox Trial" Professor Head wrote, "Lastly, what about the third, more overarching, form of criticism that can be drawn from Senator Cantwell’s statement – that the prosecution of Amanda Knox failed generally to meet adequate standards of due process? For one thing, it is important to recognize that there was hardly a rush to judgment in the case: it lasted roughly two years and involved multiple stages of procedure before a guilty verdict was reached. As Prosecutor Mignini observed, ‘[a]t the various levels in this case, from the preliminary investigating judge to the trial itself, the evidence was scrutinized by no less than 19 judges.’⁵⁹ This fact cuts against allegations that Knox was found guilty on little or no reliable forensic evidence. On the other hand, perhaps it does illustrate how complicated and laborious the trial stages have become in Italy’s mixed system."

The connection between how many judges (most of whom are lay judges) look at a case and whether or not due process was followed is tenuous at best. Either Italy's laws provide for proper discovery of forensic evidence, or they do not. If they do, then the judges failed to do their jobs. If they do not, then the laws should be amended.

 

[Diocletus]

In "Criminal Procedure in Transition: Observations on Legal Transplantation and Italy’s Handling of the Amanda Knox Trial" Professor Head wrote, "Lastly, what about the third, more overarching, form of criticism that can be drawn from Senator Cantwell’s statement – that the prosecution of Amanda Knox failed generally to meet adequate standards of due process? For one thing, it is important to recognize that there was hardly a rush to judgment in the case: it lasted roughly two years and involved multiple stages of procedure before a guilty verdict was reached. As Prosecutor Mignini observed, ‘[a]t the various levels in this case, from the preliminary investigating judge to the trial itself, the evidence was scrutinized by no less than 19 judges.’⁵⁹ This fact cuts against allegations that Knox was found guilty on little or no reliable forensic evidence. On the other hand, perhaps it does illustrate how complicated and laborious the trial stages have become in Italy’s mixed system."

The connection between how many judges (most of whom are lay judges) look at a case and whether or not due process was followed is tenuous at best. Either Italy's laws provide for proper discovery of forensic evidence, or they do not. If they do, then the judges failed to do their jobs. If they do not, then the laws should be amended.

It's great that Mr. Head has figured out an answer to miscarriages of justice: just have a whole lot of mostly ignorant people review half the evidence, and then, if they all come up with the same answer, you can be sure that the evidence is reliable. Yay! Why didn't we ever think of this?

 

[Numbers]

In ECHR case-law, such as Gafgen v. Germany [GC] 22978/05 June 1, 2010 and more recently in Lyapin v. Russia 46956/09 July 24, 2014, the ECHR has found that:

The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen, cited above, § 89).

Applying the concept in the judgment to the interrogations of Amanda Knox and Raffaele Sollecito on the night of November 5/6, 2007, there are the following parallels:

1. The treatment was premeditated: there was a contingent of police in the station, and according to the testimony of Director Giobbi of the SCO Police Unit, he had planned interrogations of both individuals to be held simultaneously.

2. The treatment apparently caused intense mental suffering in the individuals.

3. The treatment undoubtedly aroused in the victims feelings of fear, anguish, and inferiority that was capable of, and indeed succeeded, in breaking their psychological resistance, as evidenced by their confusion and the obviously false statements that the police induced both of them to sign.

A consequence of the ECHR finding that an individual has been subjected to degrading treatment is that any conviction resulting directly from information gained from the individual as a result of the degrading treatment is considered unfair, a violation of Convention Article 6. Thus, typically, the State that has committed the violation must redress it, by, for example, retrying the individual if he/she requests, but only using information and procedures in conformity with Article 6.

For Amanda, this means that, assuming the ECHR agrees that there was degrading treatment, the conviction for calunnia cannot stand.

In addition, of course, is the Salduz v. Turkey case-law relating to conviction for statements made under interrogation without a lawyer. Application of those precedents gives the same result, that Amanda Knox's conviction for calunnia was unfair and any retrial must be held in conformance with Article 6. Since the calunnia "crime" is merely a series of statements, perhaps including in the opinion of the Italian courts the written Memoriales, all of which were the product of an interrogation without a lawyer and/or police custody without a lawyer, the statements and Memoriales are not usable for conviction and thus the entire case vanishes. Of course, it may vanish as out of time allowed by the statute of limitations as well.

 

[Bill Williams]

In "Criminal Procedure in Transition: Observations on Legal Transplantation and Italy’s Handling of the Amanda Knox Trial" Professor Head wrote, "Lastly, what about the third, more overarching, form of criticism that can be drawn from Senator Cantwell’s statement – that the prosecution of Amanda Knox failed generally to meet adequate standards of due process? For one thing, it is important to recognize that there was hardly a rush to judgment in the case: it lasted roughly two years and involved multiple stages of procedure before a guilty verdict was reached. As Prosecutor Mignini observed, ‘[a]t the various levels in this case, from the preliminary investigating judge to the trial itself, the evidence was scrutinized by no less than 19 judges.’⁵⁹ This fact cuts against allegations that Knox was found guilty on little or no reliable forensic evidence. On the other hand, perhaps it does illustrate how complicated and laborious the trial stages have become in Italy’s mixed system."

The connection between how many judges (most of whom are lay judges) look at a case and whether or not due process was followed is tenuous at best. Either Italy's laws provide for proper discovery of forensic evidence, or they do not. If they do, then the judges failed to do their jobs. If they do not, then the laws should be amended.

Professor Head should debate here on ISF/JREF. If he did, he would note statements like Machiavelli's: "Police forensic DNA experts are not on trial here," or words to that effect.

Apparently, then, all 19 judges are supposed to take Stefanoni's claims about her results on her word.... as explained by no less than Judge Massei (presumably speaking for all 19 judges).

Hopefully Professor Head would amend his statements if he knew that particular aspect of the Italian system: that prosecution experts have their results NOT held to scrutiny, because they are not the ones on trial in any one particular case.

Because Professor Head needs to further explain why every independent expert(independent of the Italian court or police) claims that Stefanoni's results are junk.

 

[Numbers]

Professor Head should debate here on ISF/JREF. If he did, he would note statements like Machiavelli's: "Police forensic DNA experts are not on trial here," or words to that effect.

Apparently, then, all 19 judges are supposed to take Stefanoni's claims about her results on her word.... as explained by no less than Judge Massei (presumably speaking for all 19 judges).

Hopefully Professor Head would amend his statements if he knew that particular aspect of the Italian system: that prosecution experts have their results NOT held to scrutiny, because they are not the ones on trial in any one particular case.

Because Professor Head needs to further explain why every independent expert(independent of the Italian court or police) claims that Stefanoni's results are junk.

There is a difference between "law" and "justice" and whether or not "law" pursues "justice" can be an issue. There are too many cases here in the US where careful examination has determined that there were wrongful convictions, because the "law" was followed (allegedly) while the evidence was neglected, abused, or manufactured by authorities.

It's unfortunate if professors of law are not aware of this issue, which occurred in this case in Italy. If one investigates the judicial process in this case beyond a superficial level, one finds that Italian laws and Constitution were not followed and that the European Convention of Human Rights, binding as human rights law even above the constitution in Italy, was ignored.

 

[Numbers]

There is a difference between "law" and "justice" and whether or not "law" pursues "justice" can be an issue. There are too many cases here in the US where careful examination has determined that there were wrongful convictions, because the "law" was followed (allegedly) while the evidence was neglected, abused, or manufactured by authorities.

It's unfortunate if professors of law are not aware of this issue, which occurred in this case in Italy. If one investigates the judicial process in this case beyond a superficial level, one finds that Italian laws and Constitution were not followed and that the European Convention of Human Rights, binding as human rights law even above the constitution in Italy, was ignored.

Here's some information of interest:

http://legal-dictionary.thefreedictionary.com/Kangaroo+Court

Kangaroo Court

[Slang of U.S. origin.] An unfair, biased, or hasty judicial proceeding that ends in a harsh punishment; an unauthorized trial conducted by individuals who have taken the law into their own hands, such as those put on by vigilantes or prison inmates; a proceeding and its leaders who are considered sham, corrupt, and without regard for the law.

The concept of kangaroo court dates to the early nineteenth century. Scholars trace its origin to the historical practice of itinerant judges on the U.S. frontier. These roving judges were paid on the basis of how many trials they conducted, and in some instances their salary depended on the fines from the defendants they convicted. The term kangaroo court comes from the image of these judges hopping from place to place, guided less by concern for justice than by the desire to wrap up as many trials as the day allowed.

The term is still in common usage by defendants, writers, and scholars critical of a court or a trial. The U.S. Supreme Court has also used it. In in re gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), a case that established that children in juvenile court have the right to due process, the Court reasoned, "Under our Constitution, the condition of being a boy does not justify a kangaroo court." Associate Justice william o. douglas once wrote, "[W]here police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court" (Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 [1951]).

 

[anglolawyer]

The whole addition to the caution about allowing courts to draw inferences from silence in question is somewhat semantic and technical. In the past, the nature of the caution (i.e. "right to remain silent") meant that it was ruled that courts were simply not allowed at all to draw any inferences if, for example, a suspect had said nothing under police questioning when arrested, but had subsequently claimed an alibi etc. So the caution was changed in order to allow the courts the possibility of drawing inferences if they so wished.

However, in practice it's extremely rare that courts will reasonably be entitled to draw any adverse inferences from a defendant's silence under police questioning. Any decent defence lawyer will be able to point out that an arrest and police interview is a traumatic event for the suspect, meaning that the risk to the suspect of false self-incrimination outweighs the desire to give the police an on-the-spot explanation. In addition, the accused has the right to see the full case against him/her before providing a defence. FOr these reasons, it's extremely unusual for a court to reasonably use silence in interview as a negative factor against the accused. But the change in the caution at least gives the court a theoretical right to do so.

In the old days, the fact the accused had remained silent was withheld from the jury. It's quite a difference that it can be mentioned now. On the whole, though, I don't mind this change so much because it was offset by taped interviews with lawyer present. Now, if only that had that everywhere ...

 

[sept79]

It's great that Mr. Head has figured out an answer to miscarriages of justice: just have a whole lot of mostly ignorant people review half the evidence, and then, if they all come up with the same answer, you can be sure that the evidence is reliable. Yay! Why didn't we ever think of this?

Added some emphasis . . .