Oldal 203 [203]
OCR
THE FUTURE OF FREE PROOF IN CRIMINAL CASES What can one say about the likely fortunes of free evaluation of evidence in the future? To offer conjectures on this topic is largely to talk about the increasing influence of science and technology on factual inquiry. An increasing number of facts that used to be determined by witnesses, or could not be determined at all, can now be established by sophisticated technical instruments. And as the gulf widens between reality perceived by our sensory apparatus and reality discovered by devices capable of revealing the world beyond the reach of this apparatus, the importance of human sensing has begun to decline in a variety of social spheres. In some sports, for instance, challenges are appearing to the rulings of referees by recourse to instruments capable of determining facts more accurately than the human sensorium. Will the administration of justice be able to close the door to increasingly reliable fact-finding instruments and methods without becoming vulnerable to charges of dilettantish dabbling and obscurantism? Consider that even as things now stand witness testimony is increasingly confronting a competitor in the “silent testimony” of technological devices, testimony that must be translated to judges by expert witnesses. The importance of these “translators” of silent testimony will inevitably grow. Consider also that in some jurisdictions facts are becoming subject of formal expert testimony which until recently belonged to the basket of background information used by judges to evaluate evidence formally presented in court. For the establishment of these facts common sense and ordinary experience may not much longer be sufficient. In some American courts, for example, the question whether the woman’s delayed report of rape weakens her credibility calls for the opinion of experts rather than uneducated guesses of the jurors. Changes seem likely even in the vitally important matter of assessing witness credibility. Following improvements in the precision of instruments like the polygraph, for example, one can easily imagine the emergence of rules requiring that the testimony of witnesses, especially those offered by the prosecution, be corroborated by expert testimony. All this is not to say that forensic fact-finding will in the foreseeable future be handed over to men and women in white coats. Science and technology, it has rightly been remarked, are not Trojan horses in the citadel of free evaluation of evidence. Scientific consensus is rare, and the attitude of ordinary people to scientists is sufficiently ambivalent to prevent judges from unreflectively deferring to experts. Assuming that polygraph experts will be permitted to testify, for instance, judges will still remain entitled to assess their credibility. Nor is it render general verdicts. In the continental European version of jury trials, where jurors answer specific factual questions and return special verdicts, a degree of control over their fact-finding is possible. For the duty of the Spanish jury to explain its verdicts, see Stephen Thaman, Should criminal juries give reasons for their verdicts?, Chicago-Kent Law Review 88 (2011), 613-628. + 201 +
