From Evidence to Verdict: Confessions of a Judicial Fact-Finder

• Author: Matthew Gourlay/Brock Jones/Jill D. Makepeace/Glen Crisp/Renee Pomerance
• Pages: 21-47

CHAPTER 2

FROM EVIDENCE TO VERDICT: CONFESSIONS

OF A JUDICIAL FACT-FINDER

I. Introduction ...................................................... 

II. Perspective, Truth, and the Role of Assumptions ....................... 

A. Individual Perspective ........................................... 

B. Truth ......................................................... 

C. Assumptions ................................................... 

. Assumptions About Human Behaviour.......................... 

. Assumptions About Juries .................................... 

. Assumptions About Our Assumptions .......................... 

(A) Conflicting Messages: Delayed Disclosure ................... 

(B) Sources of Judicial Knowledge: A Taxonomy ................ 

(C) Common Sense: The Things That We Know That We Know.... 

(D) Expert Opinion Evidence: Things We Know That We Do

Not Know ............................................... 

(E) Judicial Notice: Things We Know That We Have Decided

to Know ................................................ 

(F) Judicial Instruction: The Things We Know That We Think

OthersShouldKnow ..................................... 

(G) Things That Judges Just Happen to Know ................... 

III. Conclusion ....................................................... 

21

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I. INTRODUCTION

This is a book about eviden ce. Therefore, it is also a book about j udicial fact-finding.

The two are interconnected. Par ties introduce evidence because th ey hope to gener-

ate favourable facts. Evidence leads to fac ts, and facts, combin ed with law, lead to a

verdict. The facts mat ter. They are usually dispositive of legal disputes. Some ca ses

turn on abstract questions of l aw; most turn on how the law applies to sp ecific facts.

Law without facts is theo ry, and “[t]here is nothing more horrible tha n the murder of a

beautiful theory by a brut al gang of facts.”1

The role of the judge has evolved over time. H istorically, judges often presented as

inscrutable ciphers, sittin g passively on the dais as the eviden ce washed over them.

Things have changed. Counsel are s till responsible for leading eviden ce and presenting

the case; however, judges are far more likely to intervene to ensure fairn ess, adherence to

the law, and/or proper use of judicial resources. When it come s to resources, judges must

be alive to the constitutional right of accused pe rsons to trial within a reasonable time. As

the system places increasing de mands on finite court resources, judges are more actively

involved in case management and s upervision of the time set for proceedings.

Beyond that, and more impor tantly, judges must advert to their obligations to ensure

the fairness and integrity of tr ials and other proceedings. For example, a trial judg e may

reject inadmissible evide nce even if opposing counsel have failed to raise ob jection.

A trial judge may take a proactive approach to prevent inappropriate questioning of a

complainant in a sexual assault trial . A trial judge may have concerns about the reliability

of scientific evidence that has gone in w ith the consent of all counsel. These a re but a

few examples. Such intervention s must be approached with care. On the one hand, th e

trial judge is entitled, and inde ed obliged, to ensure the integrity of th e proceedings.

Trial judges, like all participants in the tr ial process, have a duty to prevent wrongful

convictions. On the other hand , the trial judge is not an advocate and mu st take care

not to appear aligned with a par ty to the dispute. Interventions must occur in a manner

that does not give rise to a reasonable appre hension of bias.

All of this is to say that judges perform v arious roles. They are gatekeepers. They are

umpires. They monitor the conduc t of other participants in the process. They take steps

to ensure a fair hearing. They keep evid ence out or allow it in. They reach verdicts or

help juries reach them. They i nstruct jurors and themse lves on principles of law. They

are case managers and time ma nagers. All of these functi ons are undertaken in aid of

the delivery of justice. Jus tice Rosalie Abella has obser ved that, “of all the public insti-

tutions responsible for deliverin g justice, the judiciary is the only one for whom justice

is the exclusive mandate.”2

Of particular interest to this chapter is the role of th e judge as fact-finder. There are

different types of fac ts. Adjudicative, legisl ative, and social facts are dist inct from one

another, though they are not watertight compartm ents. Facts may be based on evi-

dence, but they may also flow from commo n sense and judicial notice. Judge s apply

facts when deciding w hether evidence is relevant. Judg es apply facts when de ciding

1 François Duc de La R ochefoucauld, Réflexi ons: Ou, Sentences Et Maximes Mo rales de La Rochefoucaul d

(1665).

2 Rosalie Abella, “Key note Address” (delivered at t he 70th Anniversar y Nuremburg Symposium, J agiellonian

University, Kra kow, Poland, 4 May 2016).

22 MODERN CRIMINAL EVIDENCE

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