By Caryl Verrier
In my opinion, things appear to have fallen apart in the criminal court room. Criminal trials have become a farce, but one in which the players are all so absorbed in their respective roles that none of them is able to see the theatre of the occasion: They play on as if it were real. They fail to see that it has nothing to do with arriving at the truth and dispensing justice; that it is, in truth, some kind of silliness. A game in which the best player wins.
There are a number of factors that, in my opinion, conspire to create this scenario:
The consequences of things falling apart in the criminal court room are far reaching. It affects the fate of the individual accused and, equally important, it brings the entire legal system into disrepute, which in turn has implications for the broader community’s respect for the law.
Adversarial system
In an adversarial system every case devolves into a win/lose scenario. The presiding judicial officer impartially adjudicates between the parties. He does not investigate the case and is not permitted to interfere with the manner in which a party’s case is conducted or evidence is led, except to clarify some aspect of the evidence or argument that may be unclear (see ‘Advantages and disadvantages of the adversarial system in criminal proceedings’, www.lrc.justice.wa.gov.au at 69, accessed 26-9-2011).
In my opinion, the primary difficulty with the adversarial system is that the complete set of facts on which the case is based is seldom placed before the court. The facts proved by the evidence are invariably incomplete and, particularly where proved by inference, may be very different from the true facts; whether that be by design or otherwise and whether at the instance of the parties and/or their legal representatives, the court invariably adjudicates the case on only part of the picture.
Carrie Menkel-Meadow writes:
‘Binary, oppositional presentations of facts in dispute are not the best way for us to learn the truth; polarised debate distorts the truth, leaves out important information, simplifies complexity, and obfuscates rather than clarifies’ (C Menkel-Meadow ‘The trouble with the adversary system in a postmodern, multicultural world’, William and Mary Law Review (1996) 38 issue 1 article 3 at 6).
White J, in United States v Wade 388 US 218 (1967) at 257 – 258, said of the adversarial system:
‘But defence counsel has no … obligation to ascertain or present the truth. Our system assigns him a different mission. … Defence counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the state to its proof, to put the state’s case in the worst possible light, regardless of what he thinks or knows to be the truth. … [M]ore often than not, defence counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth. … In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defence counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.’ (See also E Whitton The Cartel: Lawyers and their Nine Magic Tricks (Griffin Press Pty Ltd: 1998) ch 15.)
Standard of proof
In most adversarial systems, such as in South Africa, the state bears the onus of proving the guilt of the accused beyond a reasonable doubt, including, if he raises a defence, of proving that his defence is not ‘reasonably possibly true’ (see R v Hlongwane 1959 (3) SA 337 (A) at 341A and S v Khumalo en Andere 1991 (4) SA 310 (A) at 327H). The test is whether, on the totality of the evidence, the hypothetical reasonable man would consider that there was any doubt that the accused was guilty of the crime charged.
The first difficulty with the test of reasonableness is that it is subjective. No matter that it is couched in the language of objectivity, it is in reality subjective, as the hypothetical reasonable man’s opinion is formulated by the presiding officer: The presiding officer is the reasonable man. And, quite obviously, opinions differ from one judicial officer to another as to what is reasonable, and may differ completely from the accused’s opinion as to what is reasonable.
The judicial officer’s subjectivity, or personal bias, which informs his decision is what Oliver Wendell Holmes Jr put forward as the ‘inarticulate major premise’ (see O Wendell Holmes Jr The Common Law (1881)). Holmes said that there was a bias inherent in any judicial officer’s value judgment that was a product of his background. A judicial officer’s opinion as to reasonableness is a value judgment that is necessarily coloured by his ‘inarticulate major premise’ and is thus subjective.
The second difficulty with the test of reasonableness is that, as a simple matter of logic, the fact that something is reasonable does not necessarily make it true, nor does the fact that something is unreasonable make it untrue. While reasonableness may be an indicator of the truth or otherwise of the evidence, it does not, without more, prove that it is either true or untrue, as the case may be.
As a result of these difficulties, it may happen – and, I would suggest, often does happen – that a presiding officer rejects an accused’s defence as being not ‘reasonably possibly true’ when in fact it is true. He finds the guilt of the accused to have been proved beyond a reasonable doubt when, although reasonable (on the proved facts) that he committed the crime charged, he did not.
The bottom line is that the criminal standard of proof is fallible. It does not guarantee that the truth will be established and thus that justice will be done. It simply establishes facts that the court subjectively considers to have met a certain evidentiary threshold, whether or not they are true.
Standard of the Bench
Another factor causing things to fall apart in the criminal court room is that the standard of the Bench in South Africa, on average, has declined. It would appear that the problem lies in the candidates appointed (or overlooked for appointment) to the Bench by the Judicial Service Commission (JSC):
‘The appointment of lawyers with minimal court experience to the High Courts has done the public no service. … There have, in criminal matters, been horrifying convictions and equally horrifying acquittals where judges have simply not understood the fundamental rules of evidence or of criminal law’ (‘The troubled state of South Africa’s judiciary’, address by Judge Carole Lewis to a South African Institute of Race Relations briefing, Johannesburg, 14 October 2008).
The JSC has sought to justify its decisions to appoint, and not to appoint, candidates to the Bench on the basis of its focus on ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa’, as provided for in s 174(2) of the Constitution (see N Manyathi ‘JSC makes no apologies for gender and race criteria’ 2011 (June) DR 10).
Standard of counsel
One merely has to spend a day in the High Court listening to a criminal trial to realise that something is badly amiss with the quality of defence counsel.
The defence of indigent accused generally falls on Legal Aid South Africa (Legal Aid SA), whose mandate is:
‘To be a leading provider of quality, professional legal services, ensuring effective access to justice for the poor and vulnerable, in an independent, efficient and caring manner’ (Legal Aid Guide 11ed 2009 at vi).
I suspect it to be too simplistic to attribute the poor quality of counsel solely to the criteria applied by Legal Aid SA in the selection of counsel to represent indigent accused. Rather, I suspect the problem to be the result of a combination of factors, possibly stretching from as far back as the requirements for university admission, to the content and quality of the LLB degree (see ‘Law Society welcomes LLB curriculum review – repeats concern at law graduates’ lack of basic skills’, statement issued on behalf of the co-chairpersons of the Law Society of South Africa, M Boqwana and P Horn, 22 November 2010; P van der Merwe ‘The trouble with LLB graduates’ 2007 (April) DR 3; K Hawkey ‘Q & A with Brent Williams, newly appointed CEO of Cliffe Dekker Hofmeyr’ 2011 (May) DR 26, to the professional requirements for eligibility to practise as an advocate or attorney, to the requirements for eligibility to appear in the High Court, to Legal Aid SA criteria for selection of counsel to represent indigent accused, and perhaps more.
That said, it is worth noting that Legal Aid SA scores legal practitioners according to a racial quota of: ‘African 4; coloured and Asian 2; white 1’ (Legal Aid Guide (op cit) para 8.4.2 at 108) and allocates judicare instructions according to a ratio of: Black 4, coloured 2, Indian 2 and white 1 (the definition of ‘Black Economic Empowerment Ratio (BEE Ratio)’, annexure O at 269).
The allocation of cases in the ratio 4:2:2:1 (equivalent to roughly 44%: 22%: 22%: 11%) (Legal Aid Guide (op cit) at 269) in the Western Cape, for example, is, in my opinion, completely unrealistic where the racial composition of the attorneys’ profession under the jurisdiction of the Cape Law Society is 69% white: 13% black: 3% coloured: 15% Asian (numerically, roughly 3719 white: 670 black: 167 coloured: 799 Asian)(‘Practising Attorneys: Race’, Law Society of South Africa LEAD Statistics June 2011 at 29). And where the racial composition of the Cape Bar is 84% white: 2% black: 12% coloured: 0,2% Asian (numerically, 366 white: 10 black: 53 coloured: 8 Asian)(General Council of the Bar of South Africa Race and Gender Statistics as at 30 April 2011, www.sabar.co.za, accessed 23-11-2011). (Of course, not all practitioners make themselves available to accept Legal Aid SA’s instructions and there are, in addition, practising advocates who are not members of the General Council of the Bar.) How, then, can 44% of all cases in the Western Cape, practically speaking, be allocated to black practitioners?
It needs also to be noted that Legal Aid SA does not specifically require that counsel eligible to receive instructions must have passed pupillage or must otherwise have shown themselves to be competent (see Legal Aid Guide (op cit), annexure O, paras 3.4 – 3.12 at 270 – 273).
In the context of the poor standard of counsel, it again becomes relevant that we have an adversarial system inasmuch as, no matter the incompetence displayed by counsel before him, a judicial officer is not permitted to interfere with the manner in which counsel conducts his client’s case. He must sit passively as counsel delivers a less than stellar performance, even knowing that counsel’s sub-standard performance ultimately comes home to roost with the accused. Such a scenario is surely undesirable.
Sentences of imprisonment
A further factor rendering the criminal court room farcical is the fact that judicial officers persist in imposing sentences of imprisonment. I am aware that contemporary community mores do call for the imposition of sentences of imprisonment. I am also aware that the imposition of sentences of imprisonment is sanctioned by both case law and legislation (in some instances, mandated by legislation). In my opinion, the traditional justification for the imposition of sentences of imprisonment that underlies both case law and legislation, namely that it serves the purposes of deterrence, retribution, punishment and rehabilitation, no longer holds water and the courts ought therefore to be examining alternatives to sentences of imprisonment which do serve those purposes (C Verrier ‘Is imprisonment in South Africa legally defensible?’ The Advocate vol 22 no 3 December 2009 at 41).
The only instance in which, by way of exception, I can conceive of imprisonment being justified is where the accused is a danger to society. In that case, the fact that imprisonment serves none of its avowed purposes is perhaps justifiably overlooked in the name of protecting society. Short of that, sentences of imprisonment are legally unjustifiable and ought not to be imposed.
Conclusion
So what are we doing in our criminal courts? The weaknesses in the adversarial approach and the criminal standard of proof, the decline in the standard of the Bench, the poor standard of counsel and the continued imposition of sentences of imprisonment, in my opinion, all lead to a farce. No one can possibly take seriously what happens on a daily basis in the average South African criminal court.
Solution
A good starting point would be to challenge the propriety of the adversarial system for our criminal courts. Particularly given the poor standard of counsel, the court ought to be clothed with greater powers to investigate – or, at least, participate in the conduct of – the case. Certain of the rules of evidence ought also to be adapted to allow for the reception of evidence which would currently be considered inadmissible (see ‘Advantages and disadvantages of the adversarial system in criminal proceedings’ (op cit) at 98). Such a move in the direction of an inquisitorial approach would offer greater protection to an accused who finds himself represented by inexperienced and/or incompetent counsel and would also go some way towards ensuring that all of the relevant facts are placed before the court before it makes a decision whether or not to convict.
There has already been some move away from a strictly adversarial approach towards a more inquisitorial approach in the pre-trial stages by conferring considerable discretion on non-judicial bodies, through guilty pleas, plea bargaining and several diversionary processes by non-judicial authorities. Greater reliance ought to be placed on the diversionary processes and a move towards a more inquisitorial approach ought now also to be made in the conduct of the trial itself (see ‘Advantages and disadvantages of the adversarial system in criminal proceedings’, (op cit) at 93 – 94).
Carrie Menkel-Meadow is of a similar view:
‘After I critique the adversary system, you will wonder what I would substitute for it. … [T]o achieve the goal of determining criminal guilt, a different process may be required than is required for allocating money or human, parental, or civil rights. Sometimes other processes, such as mediation, inquisitorial-bureaucratic investigation, public fora or conversations, “intermediate sites of discourse”, private problem solving (negotiation) or group negotiation, and coalition and consensus building would resolve better the legal and other issues involved. I am thus suggesting variety and diversity for our legal process that will, in turn, require more diverse and complex thinking about which legal ethics would be appropriate in different settings.
Some might prefer to reform the adversary system to keep it protean enough to remain inclusive, as a model, for our entire legal system. In my own view, this will not be adequate. We need to explore alternative models of legal process and ethics that will better meet the needs of more complex, postmodern, multicultural disputes and issues’(Menkel-Meadow (op cit) at 11 – 12).
There would then remain the problems of the decline in the standard of the Bench and the poor standard of counsel. The decline in the standard of the Bench is, theoretically at least, more easily addressed because it would appear that a single factor can be identified as being the culprit, namely the JSC’s focus on racial and gender equality in making appointments to the Bench. The solution, in my opinion, would be for the JSC to recognise that sacrificing the quality of the judiciary on the altar of a political ideal, which has, to a large extent, been achieved, is too high a price to expect individual accused and the public to continue to pay. As Judge Lewis has said:
‘Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty. …[F]or judges to be able to work effectively, efficiently and without fear of political interference … appointments to the Bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC’ (Lewis (op cit)).
In addition, Judge Kees van Dijkhorst has said the following:
‘The criminal justice system is in dire straits. … At the root of the situation is a lack of competence, diligence, and sometimes integrity. …
The remedy is to bring back the confidence in the judiciary by appointing judges from the best of our senior counsel, on the basis of merit’ (‘The law, the lawyer and society’, keynote address by Judge Kees van Dijkhorst at the University of Pretoria, law faculty graduation ceremony, 16 April 2009).
And, finally, P Hoffman and M de Swardt have said: ‘… the common weal will not be served by the appointment of inferior judges in the interests of race and gender considerations’ (P Hoffman and M de Swardt ‘The JSC has lost its way’, 20 April 2011, www.politicsweb.co.za, accessed 23-11-2011).
The problem of the poor standard of counsel is more difficult to address because of the multiplicity of factors involved. I suggest that some investigation needs to be conducted, perhaps by the Law Society of South Africa in conjunction with the General Council of the Bar, into the causes of the problem and possible solutions.
The problem we have in our criminal court rooms is not unsalvageable but, first, it needs to be acknowledged and, second, it needs to be fixed. Continuing blindly, like an ostrich with its head in the sand, can only ensure that things go from bad to worse.
Caryl Verrier BCom LLB (Wits) is an advocate in Cape Town.
This article was first published in De Rebus in 2012 (Jan/Feb) DR 54.
