"First rate" fact finding: reasonable inferences in criminal trials: a lecture in honour of Ivan Cleveland Rand.

AuthorBoyle, Christine

Naturally, I have given some thought as to how I can honour Ivan Rand in this lecture. I feel that I can make a connection in terms of substance. I hope to link his well-known focus on the rule of law to my subject of drawing reasonable inferences in criminal trials. Style is more of a challenge. I feel in my bones that Ivan Rand would not have cared for a PowerPoint presentation. As well, when he wrote a paper, delivered a judgment or gave a lecture, he produced a knowledgeable, structured analysis of a particular area of law such as fraud. (1) His judgments, scholarly papers, and lectures were not striking for digressions, frivolities, or soul-searching about choice of words. He did not indulge in the lengthy footnotes described by Chuck Zerby in his book The Devil's Details, as the "corridor where the scholar pops out of his office to stretch his legs and meeting colleagues, gossips, tells jokes, rants about politics and society, and feels free to offer opinions based on nothing but his prejudices and whims." (2) Rather, Rand was a practitioner of the art of the footnote as brief citation.

He was not averse to bold asides, such as the sweeping assertion in his article on fraud that fraud was present in almost every class of sport. (3) And it appears that he took pleasure in the collection of what might be called historical trivia, such as examples of "mischievous frauds" in the same article. (4) He referred to the existence of 2,000 "Van Dykes" when only 70 were painted by that artist. (5) Such observations or decorative illustrations were included in his text rather than his footnotes. In spite of my admiration for such flourishes as the 2,000 Van Dykes, I think it is fair to say that his sense of humour, personal opinion and interest in scholarly gossip were implied rather than explicit in his writing and lectures.

In contrast, my view is that the appropriate place for asides, trivia, and fooling around is generally the footnote. I like the relative freedom footnotes provide for lists, tangents, and quibbling. I like the scope for the self-indulgence of both quoting and taking issue with oneself and of sly digs at others. The footnote, oddly, is a written medium through which the author's voice can be more clearly heard than in the text. In spite of the fact that it is a stretch to make the connection, I propose to try to honour this "implied" aspect of Rand's scholarship by delivering this lecture in the form of verbal footnotes to my PowerPoint presentation. (6)

Let me turn then to the reference to "first rate" in my title. According to former Dean MacKay of the University of Western Ontario Faculty of Law, "first rate" was one of Ivan Rand's favourite expressions. (7) He applied it to anything special, such as a first rate blizzard or a first rate automobile accident. (I had some first rate turbulence flying here from Vancouver.) First rate fact finding in the form of reasonable inferences is particularly important in criminal trials, where freedom, reputation and the safety of the public are at stake. A concern in the critical literature on the law of evidence is that fact finders should carefully examine and tailor the inferences they may draw and not base factual findings on off-the-peg stereotypes. For example, sexual assault trials have attracted particular concern about stereotypical reasoning. There has been a good deal of feminist engagement with inferences in that context. In my own work, for instance, I have focused on the drawing of inferences of consent from prior sexual history. (8)

I am not going to denounce the stereotyping of women in sexual assault trials today. In fact, I am going to indulge in stereotyping myself and tell you a story about an Irishman. (My defence is that we are close to St. Patrick's Day.) This particular Irishman went out drinking one night. He drank heartily. He came home with two small bottles of whiskey in his back pockets. As he came in his front door he fell backwards and broke both bottles. He pulled down his pants and, looking in the hall mirror, he saw many small cuts to his bottom. He stumbled around looking for Band-Aids, and, using the hall mirror, he applied them to all the cuts he could see. In the morning, his wife, a charming Irishwoman, said to him in her candid fashion:

"You got drunk again last night."

He replied, "What makes you say that, sweetheart?"

She said, "Well, it could be the noise you made coming in the door. It could be this bloody, broken glass on the floor. It could be the smell of whiskey. But really it's all those Band-Aids on the hall mirror."

Justice Rand, like the Irishman's wife, was familiar with the process of drawing "reasonable inferences" from evidence.

What the jury "must do is draw their conclusions from the evidence submitted to them or the reasonable inferences arising from it." Chow Bew v. The Queen (9) In the murder case of Chow Bew, he refers to the impropriety of a judge urging a jury to engage in speculation. The jury (of fact finders more generally) should only draw reasonable inferences.

In jury trials it is the jurors who decide whether to draw inferences. However, judges often try to influence the jury and not always in the direction of promoting first rate fact finding. In order not to cast aspersions on any of Justice Rand's judicial colleagues who are present, I draw my examples from English trials.

Jeremy Thorpe was the leader of the Liberal Party in the United Kingdom from 1967-1976. His political career ended after he was charged with incitement and conspiracy to murder of all alleged lover, Norman Scott. At his jury trial, the Old Bailey judge described Mr. Scott as follows:

You will remember him well--a hysterical, warped personality ... He is a crook ... He is a fraud. He is a sponger. He is whiner. He is a parasite. But of course he could still be telling the truth. It is a question of belief ... I am not expressing any opinion. (10) The jury acquitted. (11) This summing up was famously satirized by Peter Cook in an Amnesty benefit show, The Secret Policeman's Ball, in a piece that became known as Entirely a Matter for You. (12)

A contrasting example is from a defamation case, albeit one ultimately leading to a conviction for perjury. British politician and writer Jeffrey Archer sued the Daily Star, which had published an allegation that he had paid money to a prostitute for sex. Justice Caulfield famously said to the jury.

Remember Mary Archer [his wife] in the witness-box? Your vision of her will probably never disappear. Has she elegance? Has she fragrance? Would she have, without the strain of this trial, radiance? How would she appeal? Has she a happy married life? Has she been able to enjoy, rather than endure, her husband Jeffrey? ... Is he in need of cold, unloving, rubber insulated sex in a seedy hotel round about quarter to one after an evening at the Caprice? (13) The jury was thus invited to draw an inference that a man with a "fragrant wife" would not have sex with a prostitute. The jury awarded Archer 500,000 pounds in damages. Jeffrey Archer was later convicted on a charge of perjury arising out of his testimony at the defamation trial.

The question of how to assess whether inferences that a man who stuck Band-Aids on a mirror was intoxicated, that a man whom a judge thinks is a scoundrel is lying, and that a person with a fragrant spouse would not pay for sex after a night at the Caprice are reasonable is the subject of my remarks this evening.

Relevance--the basic concept of the law of evidence

Inferences cannot be drawn from irrelevant evidence

* Rationality

* Fairness

* Equality

* Economy

"Circumstantial evidence serves as a basis from which the trier of fact may make reasonable inferences about a matter in issue." (14)

Reasonable inferences are drawn from relevant circumstantial evidence. In other words, to say that evidence is irrelevant is to say that one can draw no reasonable inference from it. It would be irrational, unfair, megalitarian, and inefficient in terms of judicial economy to base inferences on irrelevant information.

There are many examples of Canadian courts addressing issues of whether particular information can appropriately be used as the basis of an inference in criminal trials. An uncontroversial example relating to proof of mens rea is that a fact finder may draw an inference of intention from conduct. Here are some other examples demonstrating the use of the footnote as a list that would otherwise interrupt the flow of the text.

Generally, negative inferences cannot be drawn from the decision of an accused not to testify. But that decision may weaken an alibi. It is not generally appropriate to draw an inference about consent or credibility from the sexual history of a complainant in a sexual assault trial. However, the fact that such a complainant has not written about the alleged assault in her diary may be relevant to credibility. Knowledge of the privilege against self-incrimination does not yield an inference in relation to truthfulness one way or the other. Evidence of poverty has been held not...

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