Forensic experts often identify themselves in conjunction with the party that has retained their services. They are a “prosecution expert” or a “defense expert” or announce that they serve both roles. Experts should not align themselves with either side in criminal or civil litigation. Although retained by one party in a case, the expert’s non-partisan duty is to assist the court in the analysis of complex facts and ideally the ascertainment of the truth in the case, irrespective of whom the truth benefits the most. This brief commentary focuses on the purposes of a criminal trial and the quest for the truth.
The immediate purpose of a criminal trial is to determine whether the prosecution has proven its case against the defendant. Once the state makes allegations against the defendant, it must prove the allegations beyond a reasonable doubt. The verdict is likely the most important result for those intricately involved in the case, but the allegations concern not only wrongs done to the victim, but to society as a whole. That is why criminal prosecutions are conducted by a public prosecutor.
Even though all trials involve the determination of whether allegations have been proven, there may be other undercurrents at play, beyond the question of mere proof. Trials have long fulfilled the subsidiary role of being a morality play, pedagogically ministering to society at large on the subject of forbidden conduct and the consequences for violating such social norms and laws. In this way, the criminal trial process is both teacher and preacher. To use an extreme example, morality messaging was a key element in the Einsatzgruppen Trial, which took place in Nuremberg, Germany in 1947-1948. It was the ninth of twelve trials for war crimes and crimes against humanity conducted by U.S. authorities in the aftermath of World War II, formally referred to as the Trials of War Criminals before the Nuremberg Military Tribunals. The defendants were commanders of the Einsatzgruppen units, which were mobile SS death squads operating behind the front lines in Nazi-occupied Eastern Europe, and responsible for two million murders. In the prosecution’s opening address, U.S. Army Chief Prosecutor Benjamin B. Ferencz said, “Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.” Proving the moral depravity of the defendants’ atrocities for the world and asserting the plea of humanity was at least as important as the ultimate verdict.
Domestic (non-international) trials often involve moral ministering as well. Over the course of my career as a Crown Prosecutor, I prosecuted many high-profile cases which have garnered local and national news coverage. When conducting such prosecutions, I knew that the evidence I was leading, the arguments I was making on criminal liability and sentencing, and the decisions made by the court served a didactic purpose destined for an audience far beyond the people in the courtroom. This is not to say that I conducted such trials differently; rather, I was aware that the democratization of criminal justice was at play and that the trial held a societal purpose beyond those people intimately involved in the case. These complementary functions, moral instruction and general deterrence, are immanent in many criminal prosecutions, where the audience includes not just those defendants listed on the Indictment, but other people engaged in similar conduct in other situations.
Concurrent with the importance of the judicial verdict and moral instruction, the use of the trial process to ascertain the truth is an essential dominant theme. The function of a criminal trial has changed over the centuries from one of public spectacle and pseudo-justice to that of truth discovery. Selecting, leading, and challenging evidence should all be aimed at the search for the truth. The objective theory of truth posits that there is one accurate account of an event and that counsel and the court’s goal should be to find it, while the subjective theory allows for multiple accounts of an event that could each accurately explain the event. Under either approach, the search for the truth is often a daunting task, without certain resolution, but it must be the dominant purpose of any trial because without knowing what happened and who is responsible, there can be no attempt at achieving justice, however illusive that may be in reality. Truth may not lead us to justice, but it is surely an essential precondition for it.
Forensic experts play an important role in the ascertainment of the truth and the pursuit of justice. The expert’s opinion may not favor the party that has engaged the expert but that should be of little moment for the ethical and principled expert. There is no prosecution truth, no defence truth – there is only the truth. Sometimes the truth will set the defendant free, other times it will seal the defendant’s fate. The truth may be antithetical to the interests of the prosecution or the defense, but that is not the concern of the forensic expert, whose duty is to assist the court in its most difficult task, that of judging others.
The goal of ascertaining the truth is well established in the International Criminal Court and the international criminal tribunals that have conducted atrocity trials. In Prosecutor v. Brdanin and Talić, the International Criminal Tribunal for the Former Yugoslavia referred to a trial as “an often complex journey in search for the truth.” The Supreme Court of Canada, in R. v. Nikolovski, said that, “The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth.” In Verizon Directories Corp. v. Yellow Book USA, Inc., the U.S. Court for the Eastern District of New York said, “The purpose of a trial is to reveal the relevant real-world facts and to draw inferences leading to proof or disproof of operative elements of a cause of action; it is essentially a teaching learning process.”
Philosophically and practically, the truth, or at least the whole truth, may be unknowable in some cases. In acquitting Ivan Demjanjuk of the allegation that he was “Ivan the Terrible,” an operator of the gas chambers at Treblinka, the Israel Supreme Court, in Demjanjuk v. Israel, stated, “The matter is closed – but not complete. The complete truth is not the prerogative of the human judge.”
I maintain that to prove a case beyond a reasonable doubt requires the establishment of the truth or very close to the truth. Central to miscarriage of justice cases wherein innocent people have been convicted and sentenced is a failure to find the actual truth, as opposed to the prosecution’s perception of the truth. During my career as a Crown Prosecutor, I was never told that my job was to get a conviction – because that was not my role. My mission was to find the truth (where possible) and to seek justice based on that, a very demanding and sometimes impossible task. Sometimes the truth is that the defendant is not responsible for all, or any, of the crimes alleged. The goal must be to seek true and honest justice, not just the façade of justice. The pursuit of a just result is not a lofty goal; it is the mandate of a just society.