Adversarial Criminal Justice System Research Articles

Testimonial injustice: exploring ‘credibility’ as a barrier to justice for people with learning disabilities/autism who report sexual violence

Rape/sexual assault cases have high levels of attrition, with reports of sexual violence from people with learning disabilities/autism disproportionately represented. This paper presents the results of a small qualitative study in the UK which focuses on how the criminal justice system is experienced by people with learning disabilities/autism who report sexual offences. An adversarial criminal justice system is reliant on normative social constructions of credibility and the embodiment of (ideal) victimhood through testimony. Adopting Fricker’s framework of testimonial injustice (2009) we explore how epistemic assumptions around credibility create a barrier to justice and facilitate case attrition for victim/survivors with learning disabilities/autism. The paper highlights how criminal justice interpretations of behaviour, communication and third-party disclosure limit access to justice for individuals with learning disabilities/autism, rendering the criminal justice process inherently discriminatory to those with atypical frames of reference.

Warnings From the West: Identification and Expert Evidence as Causes of Wrongful Convictions and the Implications for South Africa (Part 1)

Being wrongfully convicted of a crime is arguably one of the most dreadful examples of injustice in any criminal justice system. This phenomenon has been recorded and studied in Western, predominantly adversarial, jurisdictions such as the United States of America, England-Wales, Canada, and Australia since the late twentieth century. Factors that have been found to contribute to wrongful convictions include eyewitness misidentification, faulty forensic evidence, prosecutorial misconduct, inadequate defence, and many more. While adversarial safeguards such as cross-examination and acquired expertise are thought to diminish the chances of wrongful convictions by revealing unreliable evidence, an increasing number of researchers are concerned that these safeguards have little effect on accurate fact-finding in criminal trials. In South Africa, where individual reports of wrongful convictions in the predominantly adversarial criminal justice system have been recorded in the media, no systems exist to track or investigate the injustice of false convictions. The objective of Part 1 of this article is to review the existing literature on eyewitness misidentification evidence as cause of wrongful convictions as well as those adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding. Parallels are drawn to the adversarial system as it functions in South Africa, and the possibility of misidentification as root and legal cause of wrongful convictions locally is considered.

“I felt like I was going to cause conflict. So, I kept quiet …” (Female child rape victim, 15 years)

BackgroundThere is limited research in South Africa that has analysed the experiences of child and youth victims of crime and sexual victimisation who accessed formal response services through the victim empowerment programme. ObjectiveThe primary aim of this article is to explore children and youth's experiences of accessing the Victim Empowerment Programmatic services, through the criminal justice system in South Africa. The focus of the article is on childrens' disclosure, reporting and social support. Participants and settingThe participants in the study are male and female victim/survivor of crime between the ages of 12–17 years who has been through a Victim Empowerment Programme (VEP) for at least 12 months. The Victim Empowerment Programme is a governmental programme located within the National Department of Social Development in South Africa. MethodThe full study is a mixed method study but the children's(youth) participation in the study is limited to qualitative methods. The data analysis utilised a thematic approach and ATLAS.ti software. ResultsThe findings revealed four themes, namely, (1) children's (as youth) perceptions of the presence and frequency of rape in communities, (2) disclosure and reporting rape; (3) interlinkage of disclosure and reporting of child rape and child sexual victimisation; and (4) seeking social and professional support to deal with the trauma of child (youth) rape and child sexual victimisation. The findings showed that children (youth) perceive their community environments as unsafe spaces where they are exposed to crimes such as rape and burglary; that there are delays in disclosure of sexual victimisation and victims/survivors are still dealing with the trauma of rape as they report the crime and navigate the pathways of the criminal justice system. ConclusionIn conclusion, this study confirms the delay in disclosure of childhood (youth) sexual victimisation and identifies the complex tension for children (youth) who disclose, that they are often pressured to report the crime, and journey through an adversarial criminal justice system, and so ‘breaking the silence’ is often unpredictable and emotionally and psychologically costly for children and youth.

Inappropriate Adults? A Review of the Current Use of Appropriate Adults in the Criminal Justice System

Appropriate Adults (AAs) are an important procedural safeguard for young and vulnerable people in a criminal investigation. The significance of their role is recognised by Parliament in the Police and Criminal Evidence Act 1984 (PACE) and the appending Codes of Practice, most notably Code C. However, the ability of AAs as to perform their role is being impeded by a lack of clarity around their status and the rules that they are governed by. Often at the behest of lawyers, AAs are excluded from the conversations which lawyers have with their clients as a pragmatic solution to the uncertainty in the status of AAs. This means that AAs are rarely able to properly perform their vital role. Consequently, vulnerable people are not receiving the meaningful support they should receive. This represents a missed opportunity to protect the rights and interests of vulnerable people in the criminal justice system. When AAs are deployed effectively and appropriately, they can empower young or vulnerable suspects in an adversarial criminal justice system which, in turn, can help recalibrate the scales of justice to allow for a fairer outcome. This article will examine and critique the state of the current law, clarify the law on Legal Professional Privilege (LPP) and how that relates to Aas and propose a modest incremental extension to the principles of confidentiality to cover confidential discussions between AAs and young or vulnerable people in the criminal justice system.

The South African Prosecutor in the Face of Adverse Pre-Trial Publicity

Pre-trial publicity regarding a pending criminal case, which publicity may be in the form of media coverage of the case or a prior decision given in parallel judicial proceedings arising from substantially the same facts as the criminal matter, may be adverse to an accused. Such media publicity or findings contained in the parallel judicial decision may implicate the accused in the commission of the crime on which he or she is to stand trial. The publicity may, for example, suggest that the accused is "guilty" of the crime charged, or that the accused is of bad character having had the propensity to commit the crime. Conversely, pre-trial publicity may portray the accused as innocent of any criminal wrongdoing. In other words, pre-trial publicity may prejudge the issues that are to be adjudicated on at trial. A central question that may arise in these instances is whether there is a real and substantial risk that such publicity would materially affect or prejudice the impartial adjudication of the criminal case; that is to say, whether the publicity is likely to have a biasing effect on the trial court in the adjudication process or the outcome of the trial, thereby imperilling the constitutional right to a fair trial.
 Another key consideration, in respect of which there is scant literature and case-law, is the question of the impact which adverse pre-trial publicity may have on the prosecutor in instituting and conducting a prosecution. Being unduly influenced by such publicity, a prosecutor may impinge upon the accused's right to a fair trial. There is also a dearth of authority on how the prosecutor is to function in the face of pre-trial publicity which may be prejudicial to the accused. This article seeks to explore these aspects vis-à-vis the prosecutor. It is posited that in an adversarial criminal justice system the same level of impartiality required of the presiding judicial officer is not required of the prosecutor, and that prosecutorial bias towards the guilt of an accused is inevitable where the prosecutor decides to institute a prosecution after studying the police case docket. Thus, exposure of the prosecutor to virulent pre-trial publicity would not be inimical to the fair disposition of the accused's trial provided that the prosecutor conducts the trial fairly and without undue prejudice to the accused and is dedicated to assisting the court in arriving at the truth. Moreover, additional knowledge and understanding of a case which a prosecutor gains from an extraneous source does not amount to bias or prejudice.

Learning from contemporary examples in Africa: Referral mechanisms for restorative justice in Tanzania

Tanzania is one of the jurisdictions in Africa that follow an adversarial criminal justice system. Despite a number of problems associated with the fact that the criminal justice system over-utilises imprisonment, there is still a lack of diversionary measures to complement the system. This article investigates restorative justice as a complementary system to the Tanzanian criminal justice system, arguing that the law, including the constitution of the country, favours the application of restorative interventions. Invoking restorative justice mechanisms can, inter alia, relieve over-laden courts from the backlog of minor cases, and can help the government salvage funds by reducing the number of incarcerated offenders. It is further argued that restorative justice approaches that have been articulated in some juvenile justice systems in Africa can be adapted to suit the Tanzanian restorative approach for child and adult offenders.

Learning from contemporary examples in Africa: Referral mechanisms for restorative justice in Tanzania

Tanzania is one of the jurisdictions in Africa that follow an adversarial criminal justice system. Despite a number of problems associated with the fact that the criminal justice system over-utilises imprisonment, there is still a lack of diversionary measures to complement the system. This article investigates restorative justice as a complementary system to the Tanzanian criminal justice system, arguing that the law, including the constitution of the country, favours the application of restorative interventions. Invoking restorative justice mechanisms can, inter alia, relieve over-laden courts from the backlog of minor cases, and can help the government salvage funds by reducing the number of incarcerated offenders. It is further argued that restorative justice approaches that have been articulated in some juvenile justice systems in Africa can be adapted to suit the Tanzanian restorative approach for child and adult offenders.

Criterios para la inaplicación de la ley 890 de 2004 en delitos con prohibición de beneficios en Colombia

El presente artículo ha tenido por finalidad plantear una exposición de argumentos sobre la inaplicación del aumento punitivo de la ley 890 de 2004, en delitos con prohibición de beneficios, cuando ha existido aceptación o allanamiento de cargos en el Derecho Penal colombiano. De esta manera se busca identificar los criterios de proporcionalidad para la inaplicación de la ley enunciada, a la luz del sistema penal acusatorio y la justicia premial, con base en una metodología que se acoge a los postulados de la hermenéutica jurídica. Para la concreción de los objetivos, se caracterizó el principio de proporcionalidad de las penas y el principio de igualdad, se identificaron los parámetros de aplicación de la ley 890 en el sistema penal acusatorio y se realizó un análisis sobre los institutos de la justicia premial en el sistema penal acusatorio colombiano a partir de una línea jurisprudencial.

Finding Voice for Victims of Crime in the Adversarial Criminal Justice System

AbstractAdversarial criminal justice system is designed to accommodate only two parties, the prosecution and the defendant, in the combative atmosphere of its trial process. The victim has no right of audience other than as witness for the prosecution. The involvement of victims as active participants in the exclusionary adversarial criminal justice system continue to attract debates among scholars. Whereas some favour the involvement because of its cathartic value for victims others oppose it on ground of the dislocation this might bring to the system and the threat to the defendants’ rights. Although, there have been significant victim reforms in some advanced jurisdictions creating some forms of rights for the victim, the rights remain unenforceable internally of the criminal justice process but externally of it through some administrative mechanisms. This paper reviews the position of some of the scholars on the foregoing, the various models of the system that have been constructed by scholars to accommodate victims and the emerging rights for victims. The position of this paper is that for the rights so far created for victims of crime to be truly beneficial, the so-called rights should be enforceable internally of the system with the necessary safeguards for the existing rights of offenders.

The Impact of Adversarial Criminal Justice in the Prison Population: Evidence from the Colombian Case

Colombia is currently experiencing one of its majors social crises, that of prison overcrowding and institutional credibility in the criminal justice. As a result of this problems the Colombian Government had implemented different legal reforms, one of those reforms is the introduction of an Adversarial Criminal Justice System. According to the Latin-American literature, the criminal justice system affects the prison population in two different ways: it reduced the pre-trial detention population by increasing the constitutional guarantees of the defendant, while it increases the convicted population in prison by reducing the length of the criminal procedure. However, all these studies have been based in mere comparison of statistics among years without showing statistic causal relation among the reform and the prison population. This article contributes to literature by providing the first econometric study about the impact of the Adversarial Criminal Justice System in a Latin American country prison population. The results suggest that the reform did not have an impact on the pre-trial detention population, but it increased the release rate of prison population while reducing the convicted population in Colombia.

Legal Representation for Sexual Assault Victims — Possibilities for Law Reform?

In the past, Australian law reform often focused on improving the situation of sexual assault victims in the criminal justice system in order to increase the low reporting and conviction rates for sexual violence. Studies have shown, however, that the reporting and conviction rates for sexually motivated crime have remained low, and that victims who do report sexual assault continue to feel dissatisfied with the way they are treated by the criminal justice system. This article explores the notion of granting sexual assault victims the right to be legally represented when testifying as witnesses at trial in order to improve their experience with the criminal justice system. After considering different types of legal representation available to victims in the German inquisitorial system, it is argued that one form of legal representation, namely legal representation for victim witnesses, could successfully be implemented for sexual assault victims in the Australian adversarial criminal justice system.

Latin Justice

Latin Justice

Ten Years On, the ‘Three Circle’ Model of Restorative & Transformative Justice: A Tool to Combat Victimization and Recidivism

This paper had its genesis 10 years ago in the authors’ development of a communitarian ‘three circle’ model of restorative and transformative justice for a pilot restorative justice study used with serious and repeat adult offenders appearing in the Magistrates’ Courts in Western Australia. The model was designed in part to place their crimes within a context, something that rarely occurs within the mainstream adversarial criminal justice system in Australia. The model was primarily designed to provide victims of crime with the best outcome and offenders with the opportunity to provide apology and restitution, as well as take responsibility for their actions. The three circles, each including two facilitators, are: Circle 1: consists of the perpetrator who has pleaded guilty to a specified criminal act together with his/her family and/or friends; Circle 2: consists of the victim(s) of the crime together with their family and/or friends. Circle 3: consists of a combination of the first two circles, tasked to seek, if possible, a mutually agreeable resolution that culminates in a report to present to the Magistrate in court to use in mitigation of sentencing. Importantly, although the 30-month study had socially and economically significant results, 10 years after its completion there is still no restorative justice program in the adult courts in Western Australia. Because of this, the authors also set out to question the state government’s motivation in largely ignoring this successful process.

Paying Your Way Out of Trouble – The SFO and Deferred Prosecution Agreements

The Serious Fraud Office is, self-evidently, concerned with the prosecution of fraud and other instances of serious economic crime. Currently it does so within our adversarial criminal justice system, which, after a lengthy and expensive investigation and court process, may result in acquittal or conviction. In the UK, under the law at present, prosecution is the only option, but is a blunt instrument. The only other option is non-prosecution. The SFO must either prosecute with the aim of achieving a criminal conviction or proceed under the Civil Law. In March 2012, Solicitor General confirmed that legislation to enable deferred prosecution agreements (DPAs) into the UK, limited at first to corporate offenders, is on the way. This article examines some of the issues which lend themselves for consideration before instituting the DPA system in the UK.

Actual innocents? Legal limitations and their implications for forensic science and medicine

Drawing on legal principle, this essay considers how adversarial criminal justice systems have responded to forensic science evidence. Through reference to recent developments in Australia and foreign jurisdictions (e.g. the US and UK), empirical studies of forensic sciences and trial practice, and reviews by peak scientific and legal institutions (e.g. the National Academy of Sciences), it illustrates how lawyers and judges have fallen consistently short of their own espoused values and aspirations. The essay then turns to consider some of the implications of this legal ‘failure’ for forensic scientists, their managers and leaders. Legal limitations, in conjunction with serious and endemic problems with many forensic sciences, mean that forensic scientists and their institutions must develop socio-epistemic legitimacy through greater autonomy from investigators and the courts and a substantial research-orientation.

Prosecuting Sexual Violence in the Ad Hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia

Security Council Resolutions 1503 (2003) and 1534 (2004) provide that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are to complete their proceedings by the end of 2010. These Tribunals, established by the Security Council acting under Chapter VII of the Charter of the United Nations, were the first international criminal tribunals since the Nuremberg Tribunal and International Military Tribunal for the Far East established at the end of World War II and ushered in a new phase in international criminal law in which such ad hoc tribunals are increasingly being seen as viable options for post-conflict societies. Thus, we now have ad hoc tribunals that are either hybrid or completely international for Cambodia, Sierra Leone, Lebanon and Timor Leste as well as the permanent International Criminal Court. The age of international criminal accountability has, it might be said, arrived. To what extent, however, are these tribunals making individuals accountable for the widespread sexual violence that often (if not always) occurs in times of armed conflict and genocide? This paper explores the extent to which these tribunals making individuals accountable for the widespread sexual violence against women and girls that often (if not always) occurs in times of armed conflict and genocide. In particular, the paper tries to asses the extent to which feminist hopes for justice for women victims of sexual violence have been met by the Tribunals. In this task, the paper takes a distinctly critical approach and focuses not only on the doctrinal advances made by the Tribunals (which have been vast) but also on the operationalization of those advances (which has been less impressive). This commitment to look not only at positive law but also at law in practice and to critically appraise the dissonances that appear has long been an important part of feminist legal methodology. In the analysis that follows it becomes clear that many of the difficulties that have arisen in relation to the prosecution of sexual violence before these tribunals are familiar to feminist legal theorists as they tend to have also arisen in adversarial domestic criminal justice systems. This calls into question the extent to which we should be celebrating these tribunals when seen through a feminist lens. In particular, it ought to cause us to question the extent to which a healthy norm transfer is occurring between the domestic and the international: to what extent are feminist lessons learned domestically transferred to the international sphere, and what kinds of lessons about prosecuting sexual violence will be transferred from the international proceedings to the reconstituted justice systems in post-conflict jurisdictions?

The flight from rights : rule aversion in dealing with the criminal process Molimi, Zuma, Thint (Holdings), Shaik and Zealand

In an adversarial criminal justice system, rules tend to favour the accused. Rules, when applied strictly, create rights. The fewer the rules, the more likely the conviction. The longer the view taken by a justice system, the more generous the system to those at its barrelend. Due process intrudes upon the immediate desire to punish with an appeal to the perennial need to be humane. It arrives at the critical moment, embodying the conscience of society, to spoil the quenching of the bloodlust at the hanging party. Woe betide the accused whose case is considered with regard only to its own facts, to the crime he stands accused of committing, and to the need to do something about it. More often than not, his salvation will lie in the extent to which he is able to invoke rules, rights and principles that were created for the benefit of others, for situations other than his, and for the long-term benefit of society. He will want the judge to apply an ancient rule uncritically, instead of asking whether, in the case at hand, society's interests in fighting crime outweigh the merits of whatever complaint he has raised about the way the trial is being conducted. Such balancing exercises will tend, in the nature of things, to end badly for him.

Inequality and Adversarial Criminal Procedure

Adversarial criminal justice systems are both more efficient and more prone to inequality than inquisitorial systems. Those two propositions seem natural: adversarial justice systems privatize the production of evidence (or seem to); inquisitorial systems socialize it. Private markets are generally more efficient than socialized production of goods and services, but markets often generate uncomfortably high levels of inequality. So too here: Where criminal defendants supply their own lawyers, rich defendants buy better legal representation than poor defendants can buy, which in turn means that police and prosecutors must invest more in gathering evidence against the rich than against the poor. It follows that, in an adversarial justice system, the government can more easily convict a poor and innocent defendant than a rich and innocent one perhaps more easily than a rich and guilty one. Inquisitorial systems lack this built-in tendency toward inequality. Since equality is a core value in modern criminal justice systems, that would seem to be a large advantage for inquisitorial procedure. Bruno Deffains and Dominique Demougin (Deffains and Demougin [2008]) so argue and, in theory, they are plainly right. In practice, the picture is more complex and, maybe, more interesting. Consider three facts about inequality and criminal justice in the United States: the authors' chief example of an adversarial justice system. First, like all adversarial systems, America's justice system is not completely adversarial and its most severe inequalities tend to arise in the least adversarial part of the system: policing. The evidence suggests that criminal litigation (the most adversarial part of America's justice system) is surprisingly egalitarian; poor defendants do as well as rich ones, often better. Second, inequality is localized in particular classes of cases: especially, drug cases. Institutional design features that apply to all criminal cases cannot be the cause of inequality in only some. Third, inequality in criminal justice takes different forms: discrimination against poor defendants on the one hand, discrimination against poor crime victims on the other. Adversarial systems do not cause the second form of inequality yet, historically, that is the primary form of inequality that America's justice system has produced. Take these points in turn. For the most part, the government's evidence in criminal trials is produced not by prosecutors or their staff but by police officers. The police

Questioning child complainants of sexual abuse: Analysis of criminal court transcripts in New Zealand

This article contributes to the debate concerning how best to question child complainants about sexual abuse in a way that is in the best interests of the child and the fact‐finder. Although this research was conducted in New Zealand, the issues raised are relevant to adversarial criminal justice systems elsewhere. Four analyses were conducted on 26 transcripts of the evidence‐in‐chief and cross‐examination of child complainants of sexual abuse, and 12 transcripts of evidential interviews of the younger of these complainants. In the first analysis, a coding system was developed to categorise questions into different types of open and closed questions. In the second analysis, the authors investigated the complexity of the sentence structure used in the questions asked. Both analyses were conducted on the questions asked by evidential interviewers, prosecutors and defence lawyers. The third analysis focused on the sequence and content of questions asked in cross‐examination. Finally, the reason for interventions by prosecutors and judges were noted and discussed with particular reference to protection of child complainants. The data indicate that defence lawyers are asking some questions that children have difficulty understanding and that no‐one is intervening to protect the child from inappropriate questioning. The implications of this are outlined and recommendations made for future action.