Evidence in law and its anomalies | Letters to the Editor


Evidence as a pillar of law is fundamental to its successful enforcement, but often it is not as sacrosanct as it should be.
The inspiration for this letter is the recent exoneration of a senior official due to “lack of evidence” to prove the allegation against him. This may be the case here, as it involves due diligence in the investigation of the matter leading to the conclusion that there is no evidence to support the allegation.
But therein lies a problem. The policy of favoritism and privilege in this country often precludes the type of trust in such judgments, as fair play and justice are often compromised by the loyalties associated with such policies, particularly in cases where potential litigants have the power to punish the administrators of the law who dare to be so bold.
It is common knowledge how many senior brass in our politics against whom allegations of wrongdoing have been made continue to tout their power and influence due to a “lack of evidence”. But the evidence isn’t just compromised in our partisan politics. There are other situations where its application should be optimal, but this is not the case. In protective services, for example, it is alleged that evidence is often suppressed for incitement, or “planted” as a means of incriminating a potential offender.
The 8 August Sunday Express editorial ‘Cleansing up the military and police’ is telling in that it illustrates how far removed this weapon can be from its legitimate role of collecting evidence as a means of criminal prosecution. Moreover, even with its request from the bench itself, one is led to question the verdicts given in favor of litigants with important political connections, as in a case in the not too distant past.
Then there is also the issue of the manipulation of evidence by clever lawyers to serve certain powerful interests, often hypnotizing the simple-minded in the docks to answer incriminating questions, leading to verdicts far removed from the truth. Obviously, justice is often mocked by this corruption of its fundamental pillar.
But there is more to this travesty as far as evidence and law are concerned. First, the legal principle of “beyond a reasonable doubt” negates the issue of proportion with an overwhelming 90% in favor of guilt, but with a single red flag of evidence to the contrary negating this virtual unanimity. Where is the sense of proportion in this legal ethics? Shouldn’t the punishment be proportionate instead of the full exoneration that often results?
Second, there is the issue of “circumstantial evidence”. Who would have been able to witness the rape of the innocent young woman by her lustful boss or by her captors as she waited for a taxi after a hard day’s work? Instead of the proverbial response that there is no evidence because no one witnessed the incident, or that the evidence is merely “circumstantial”, shouldn’t there be enough medical expertise -legal to reconstruct the circumstances, pointing to a guilty verdict?
Finally, there is the issue of “infringement” of copyright. Scorpion in the movie Dirty Harry was allowed to be released despite having committed several murders simply because the film’s prosecutor believed Harry had no warrant to search the murderer’s premises and had applied a excessive force to apprehend him. Legally correct, perhaps, but the DA’s action reflects an anomaly in which the rights of the criminal often take precedence over the suffering of the victims.
There are many more anomalies on this question of proof in law, but with my race already run in terms of space, I can only suggest that more research be carried out by postgraduate students to neutralize such anomalies that are often exploited to the fullest by criminals and their legal agents.
Research must go beyond simply attempting to locate legal precedents that fit their clients’ innocence or guilt goals, to a critical examination of those legal principles with a view to rectification. After all, who have been our legislators, but men and women with their own human flaws, often short-sighted, and acting in the interests of some to the detriment of others, such as apartheid, adult suffrage for some, the colonialism, etc Al?
Dr Errol N Benjamin


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