In the past criminal procedure relied upon confessions and witness statements. However with the progress of forensic science the need of such evidence has been declined. And even more important psychology learns us that human memory is anything but reliable.

Even with good will a witness might fail to recollect events correctly. People forget things, mix memories and so on. And to make things even worse, memories can be manipulated by others (e.g. by law enforcement officers or defense attorneys). No surprise, many miscarriages of justice are due to inaccurate testimonies.

And yet many legal systems still force people to show up as witness. However, we propose the following:

  1. No one shall be compelled to testify in a court of law;
  2. But anyone who choose to do so, shall tell the truth;
  3. Co-defendants shall not be allowed to testify against each others.

The rationale for (1) is to encourage criminal investigators to look for physical evidence. In fact no case should be made in the absence of any substantial physical evidence. As a corollary of this rule, special privileges such spousal privilege could be abolished.

Co-defendants have a clear motive to reduce their own involvement, while blowing up the role of the other participants. Also no one shall be forced to testify against himself, which is inevitable if one has to testify against his co-defendants.

3 thoughts on “Testimony”

  1. Interesting concept which should be explored further. It’s sort of in line with my criticism of western jurisprudence which assumes the objectivity of judges, jurors, and testimonies. Here’s an example:

    Once as a prospective juror, one of the attorneys asked me if I could be objective in assessing the guilt or innocence of the defendant. I replied that I could be as objective as any person, but that all human beings are inherently subjective creatures. Objectivity, then, is a relative term which cannot be completely mastered by anyone. The attorney immediately dismissed me from the jury, and the presiding judge appeared dismayed by my answer.

    Had I said that I could be objective, I probably would have been selected. But, saying so does not mean that I or anyone else could or would be objective. The assumption of objectivity seems ridiculous to me.

    1. Interesting point. Objectivity is a problem which philosophers have trouble to deal with, and on one extreme some radical philosophers deny the very existence of “objective truth” (I don’t agree with that position).

      This is a typical situation in which the ideal conflicts with reality. On a normative side judges and jurors should be objective, while we have sound empirical reasons to doubt whether people can really objective. At best we can hope that people are able to suppress their prejudices and to be as unbiased as possible.

      Maybe it would help if human judges could be replaced by computers, but that would remind me of a sf story I read many years ago. There it was stated that the judge was impartial and fair, as it was a computer, but the laws weren’t.

      1. The denial of objective truth is known philosophically as “epistemological nihilism” to which, as an empiricist, I too completely reject. But as you correctly pointed out, that isn’t the issue regarding impartial jurisprudence. The problematic issue is the legal assumption that judges, jurors, and witnesses are objective just because they say so, or because of the stature of their official duties.

        I see this as problematic because it generates public distrust of our legal institutions when the inherent subjectivity of persons involved lead to real or perceived miscarriages of justice. I suspect that the legal profession would vigorously fight any effort to alter or remove “assumed objectivity” from jurisprudence since such efforts would be seen as undermining the authority of our judicial systems.

Comments are closed.