The Need For a Public Defence Institute

Errors are sometimes found in the body of evidence, and sometimes in the reasoning of the judges. Nevertheless, there are some errors that judges cannot be blamed for, since they have no way of detecting or avoiding them. But there are other errors for which judges cannot be excused.

Those two doctors who compared the stretched measure under anaesthesia of two-year-old Vanessa (chapter 33), with the unstretched measure without anaesthesia found in the literature, were guilty of fabricating a serious hoax. But it must be emphasised that this is the sort of hoax that judges have little chance of detecting. As a consequence, this form of sham evidence will almost invariably lead to a conviction.

But judges should not escape the blame for not facing and admitting their own limitation, and for not having done anything to prevent such errors. Quite a few judges (not least Inger Nyström, who was until recently a judge at the Supreme Court in Sweden) have strongly propagated that it is up to the court to decide whether there is any need for calling an expert.

In the minds of most judges at least the following four categories there will be (and I do not claim that these categories are exhaustive). (1) True knowledge. (2) False knowledge which the judge erroneously believes to be true. (3) Knowledge gaps, where the judge is aware of not possessing the requisite knowledge, and is aware that an external expert may have this knowledge. (4) Knowledge gaps where the judge is aware of not having the knowledge, but erroneously believes that no expert has it either.

In a legal system in which it is up to the judge to estimate whether there is any need of an expert, we should not expect the judge to permit an expert to testify with the aim of correcting the judge's false knowledge, and neither to permit testimony by an expert, if the judge erroneously believes that no human being is in the possessing of the requisite knowledge.

We have noted that judge Bengt G. Nilsson forbade the leader of The Witness Psychological Laboratory to tell that Elvira suffered from a typical false memory syndrome.

Judges must be blamed for overestimating their own competence and denying their limitations.

Such overestimation is not specific for judges or jurists. In fact, I have written more than most other people about the defects of two other professional groups. It may well be a widespread reaction to ignore or deny one's own errors, if one believes (perhaps erroneously) that they are beyond improvement, at least at the present time.

Be it as it may, the only possible remedy for the legal system in the present situation, would be to search for and to permit assistance from external experts.

How should such assistance be organised The worst possible solution would be to create an "impartial" and "neutral" institution, which could at the request of the court supply true information, on the basis of the fact that the institution is "independent of the specific interest of the parties". But in many countries, and Sweden is one of them, there is ample opportunity to observe the actual activities of "impartial" institutions. It will be easy for the profession of prosecutors to obtain control of them (and this is what has happened in Sweden, among other countries).

Moreover, the prosecutor will most often start to work with a concrete case a long time before a defence counsel comes on the scene. In addition, most defence counsels do not start to look for relevant information on sexual abuse, until they get their first legal case of sexual abuse.

What is needed is therefore a straightforward defence institute, which is operating at the same level as those institutions that assist the prosecutor. This suggestion is not new. Very distinguished American jurists have put forward the same suggestion more than half a century ago.

Two objections would be that this reform would cost the taxpayers much money, and that the trials would be significantly prolonged. Both objections are false. One of the greatest expenses is the cost of keeping people in prison. Even if a public defence counsel were tax financed and were to receive the same fee as a private counsel paid by the defendant himself, the total cost for the defence would rarely exceed the cost of keeping one person in prison for one single year. – The trials would also be significantly shorter, if the prosecutor knew that he would gain nothing by presenting a wealth of pseudo-evidence.

A third objection to be expected is that such an institute is superfluous, because the defence does not need to prove that the defendant is innocent; it is the prosecutor who must prove that he is guilty. – But anyone who has some experience of what goes on in the court room must find it disheartening that judges so obstinately pay lip service to a rule they never apply.

In chapter 41 we encountered the former president of the Supreme Court in Sweden, Torkel Gregow. In his article he strongly emphasises that there can be no question of applying lesser standards of proof in cases of sexual abuse than in other cases. It is not enough for a conviction that the narrative of the injured party is more probable than the defendant's account. It is must be completely clear that the defendant is guilty.

After having said this, Gregow proceeds on to say that an accusation of sexual abuse is in itself such powerful evidence, if it is "trustworthy". Concerning the problem how judges could distinguish trustworthy from untrustworthy accusations, he has only the most trivial things to say; for instance, that it is good reason for assuming that the accusation is true, if the injured party has provided the same version in all interrogations.

Numerous defendants have claimed to be innocent and have provided the same version in all interrogations. I am not sure that even one single judge can be found, who have concluded from the constancy of the accounts, that the defendant were innocent, and who has never convicted such a defendant.

There was never any evidence against Oswald and Helena. The true facts were instead that the police investigated whether Elvira's accusations of child murders were true, but abstained from investigating whether her accusations of sexual abuse were true. The police even concealed evidence that proved their innocence.

As mentioned above: in Sweden some high jurists and psychiatrists have propagated that only the court, but none of the parts, should have the right to appoint experts. Such a proposal would be a serious obstacle to a genuine defence. In most trials the prosecutor has worked with the case for a long time before a defence counsel is engaged. As a consequence, the prosecutor is in a much more favourable position to influence the court's choice of experts and institutions.

At the present time it is extremely difficult for an innocent defendant to be acquitted by a Swedish court in sexual trials (and I guess it is no different in many other countries). However, I do not believe that such a state of things would have developed, if a public defence institute had existed during the past 20 years.




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Uppdaterad: 2009-11-19

Yakida