The burden of proof in Criminal Law is “beyond reasonable doubt”. This means that in order for a criminal to be convicted, the prosecution has to prove that the accused did the crime beyond a reasonable doubt. The defence’s job would be to raise reasonable doubt in the prosecution’s case.
What does “beyond reasonable doubt” mean? Some say it’s 80% probability, some say its 90%, and even 99%. Irregardless, the burden of proof is still higher than the “balance of probabilities” required in civil law, which in mathematical terms usually means >50%. Mostly, the system serves justice well, and the results are congruent with the moral culpability of the defendant:
- Prosecution proves beyond reasonable doubt = defendant is guilty.
- Prosecution fails to prove beyond reasonable doubt = defendant is not guilty
- Prosecution proves crime beyond reasonable doubt but defence counsel manages to raise a defence of justification/excuse (e.g. private defence, intoxication, unsoundness of mind etc.) on the balance of probabilities = defendant may be acquitted or convicted of a lesser charge
Unfortunately, there are cases where things have gone awry.
I’m sure most people, especially Americans, would have heard of the trial of O.J Simpson. It was recently dramatised in a Netflix series. I didn’t know much about the trial before watching the series. I had thought that since O.J was not convicted of murder, he was likely an innocent party who had been wrongly arrested, and therefore saved by his brilliant defence counsel. As you can see, I was really clueless.
As I delved into the series, I realised that the evidence against O.J had been overwhelming. In fact, the prosecution was so confident at the start of the trial that they would win the case. If I were entitled to a personal opinion, O.J was more likely than not guilty of the murder, or at least abetment of murder. Even Robert Kardashian had his doubts.
But the defence counsel used a bunch of tactics to get O.J off, such as playing the racial card and using the glove demonstration to throw the jury off. Everything they did was perfectly legal. It’s difficult to even say what they did was ethically wrong. After all, they were doing everything to poke holes in the prosecution’s case, and had manipulated the legal system to their advantage. I would do the same if I were the defence counsel.
In the end, the jury merely took one hour to produce a not guilty verdict. If I were the jury, despite my reservations about O.J’s innocence, I would have produced the same verdict, not because I was siding with O.J, but because the prosecution had done a poor job in proving O.J’s crime beyond a reasonable doubt.
It’s not always about finding the truth
The truth is that the adversarial system that is practised in common law jurisdictions including Singapore, the US and UK, is not always about finding the truth, unlike the inquisitorial system in countries like South Korea. The trial is more of a battle of wits, of fighting to convince the judge that one side’s case theory is better than the other. It doesn’t always matter whether the case theory was what actually happened, as long as the theory fit the evidence. Moreover, only evidence admitted can be considered in a decision.
At the end of the O.J. trial, no one knows whether O.J did it or not. All we know is that O.J isn’t guilty in the eyes of the law. Is this a failure of the legal system? A miscarriage of justice? We really don’t know.
A battle of resources
In an adversarial system, a defendant with a less competent lawyer would be hugely disadvantaged, especially in capital punishment cases, where the defence counsel is sometimes assigned by the state rather than hired by the defendant himself. I’m not saying that a pro bono lawyer is always less competent, but he/she may have difficulties devoting as much resources to the case as compared to the prosecution. O.J. was fortunate that he was financially capable. He could hire the best lawyers to defend him over a long trial period, hire DNA experts to sieve through the huge amount of DNA evidence. Even the state didn’t have as much resources as he had. If O.J could only afford a public defender, would he have won the trial? In my opinion, perhaps not.
Does this mean that our legal system is fundamentally flawed? How can we change it to better serve justice?
These are not easy questions, and I do not have sufficient knowledge or experience to answer them. However, I would hesitate to dismiss the legal system as completely useless. After all, it has served us well in most situations.
Would a judge-led inquisitorial process be more suitable? On the surface it may seem that an inquisitorial process serves justice better, since it is focused on truth-finding. However, such as system is not without its flaws. It is difficult for a judge to remain impartial when he/she is involved in the fact-finding process.
For now, I really can’t propose a better solution to serve justice. Well if those intelligent judges couldn’t think of one, why would you expect an amateur like me to be able to do so right…
I guess we’ll just have to work with the current system, bearing in mind its flaws.
Oven Thoughts 