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The point being, it would be nice to know the trial isn't going to collapse because the defense got a subpoena on the phone's contents and nobody in the prosecu

The point being, it would be nice to know the trial isn't going to collapse because the defense got a subpoena on the phone's contents and nobody in the prosecution had plans for what they found. This is an artefact of the adversarial model of justice. Someone is being paid to get mister rapist, mister burglar and miss stabbity off the hook and they can and will use anything that makes you look like a liar or unreliable. Regardless if you actually are. If the UK switched to a continental style system of judge-led discovery, this kind of fishing for anything that looks bad might become less prevalent. But that isn't presently in the offing.

deogeo 7y ago
You're talking as if a trial 'collapsing' (I assume this means the accused is found not guilty) is some huge catastrophe, when in fact the possibility of such 'collapse' is the whole point of a trial.
- DanBC 7y ago
  If there's no hope of a conviction because there's evidence that strongly suggests the events didn't happen it would be better to avoid the trial.
  - deogeo 7y ago
    It would, but I wouldn't want to entirely give up victim privacy for it.
    - hdfbdtbcdg 7y ago
      If the accused is innocent then they are the victim and the accuser is the perpetrator.
      - tus87 7y ago
        Leftists struggle badly with this concept. Which is funny as decades ago it was leftists who would have been fighting against police state mentality while right wingers would be dismissive of accused people. Bleeding hearts and all that. Except when the accused is black, leftists can still get out To Kill a Mockingbird when it suits them. Then 3rd wave feminazism happened and our standards of impartial police investigations, independent courts and a fair trial resemble medieval Europe. Or North Korea or China.
      - DanBC 7y ago
        That's not necessarily true though is it? Two people can have different interpretations of events without one of them making maliciously false allegations. The complainant can have an honest, sincere, belief that they did not give consent. And, for phone evidence, there are good reasons why a complainant may say one thing to police but something else to friends of the accused.
        deogeo 7y ago
        > That's not necessarily true though is it? [..] Two people can have different interpretations of events without one of them making maliciously false allegations. You don't even have to go that far - the allegation could be true, but newly uncovered evidence could cast sufficient doubt that the accused is not found guilty. E.g. an eyewitness correctly identifies an assailant, but it is later revealed she wasn't wearing her prescription glasses.
        hdfbdtbcdg 7y ago
        Indeed there are three states. Guilty, innocent and not sure. A lot rides on it. A heinous crime must be punished (and most likely future ones prevented) but we absolutely can't send innocent people to prison - and they shouldn't spend years under a cloud of suspicion. The police, CPS and the courts have a really difficult job.
- sjy 7y ago
  The point of a trial is to allow an independent tribunal of fact to make difficult factual decisions, like whether to believe a complainant’s oral testimony. In one of the cases cited in support of this change in practice [1] the police had access to a “computer disk containing 40,000 messages [which] revealed the alleged victim had pestered [the accused] for ‘casual sex’”, but this was not noticed until part-way through a trial which everyone had spent months preparing for. In this case, justice required that the private message history between the complainant and the accused be shared with the police and, if the case was to go to trial, the court. But the fact that the messages were discovered during the trial, rather than in the early days of the investigation, was a catastrophe for which the police apologised. [1]: https://www.bbc.com/news/uk-england-42873618 https://www.bbc.com/news/uk-england-42873618
DanBC 7y ago
Hang on, the courts in England do not, cannot by law, work like that. Here's an English barrister talking about it: https://twitter.com/BarristerSecret/status/1122823927804227586 https://twitter.com/BarristerSecret/status/11228239278042275...
- sjy 7y ago
  The Secret Barrister’s tweets don’t contradict the comment you replied to. Defence lawyers can subpoena relevant material, such as communications with the accused person, from prosecution witnesses. That material will not necessarily be admissible before the jury, and the court may restrict the use of subpoenas for privacy reasons as long as it doesn’t undermine the defendant’s right to a fair trial. The Secret Barrister is talking about what the police must do whether or not the accused person issues subpoenas. Police do have a duty to pursue all reasonable lines of inquiry. If it’s a rape allegation where the complainant had a previous relationship with the rapist, and the critical issue is the complainant’s credibility, would it ever be legally unreasonable for the police to ask for the victim to turn over their phone as the first step in the investigation? And if this occurs, couldn’t that have a chilling effect on crime reporting, even if the fruits of that search would not normally need to be disclosed to the accused (or would at least be ruled inadmissible at trial, after being disclosed to the accused)? Nobody wants unfamiliar officers trawling through their phones, but the law didn’t have to change to make it far more likely that victims of crime would suffer invasions of privacy as a side effect of a lawful and proper criminal investigation. We just started carrying around huge amounts of evidence about our private lives, including evidence relevant to crimes we might want to report, 24/7. We need to talk about whether that societal fact has changed the balance to be struck between the rights of victims and defendants in the criminal justice system.

deogeo 7y ago

You're talking as if a trial 'collapsing' (I assume this means the accused is found not guilty) is some huge catastrophe, when in fact the possibility of such 'collapse' is the whole point of a trial.

DanBC 7y ago
If there's no hope of a conviction because there's evidence that strongly suggests the events didn't happen it would be better to avoid the trial.
- deogeo 7y ago
  It would, but I wouldn't want to entirely give up victim privacy for it.
  - hdfbdtbcdg 7y ago
    If the accused is innocent then they are the victim and the accuser is the perpetrator.
    - tus87 7y ago
      Leftists struggle badly with this concept. Which is funny as decades ago it was leftists who would have been fighting against police state mentality while right wingers would be dismissive of accused people. Bleeding hearts and all that. Except when the accused is black, leftists can still get out To Kill a Mockingbird when it suits them. Then 3rd wave feminazism happened and our standards of impartial police investigations, independent courts and a fair trial resemble medieval Europe. Or North Korea or China.
    - DanBC 7y ago
      That's not necessarily true though is it? Two people can have different interpretations of events without one of them making maliciously false allegations. The complainant can have an honest, sincere, belief that they did not give consent. And, for phone evidence, there are good reasons why a complainant may say one thing to police but something else to friends of the accused.
      - deogeo 7y ago
        > That's not necessarily true though is it? [..] Two people can have different interpretations of events without one of them making maliciously false allegations. You don't even have to go that far - the allegation could be true, but newly uncovered evidence could cast sufficient doubt that the accused is not found guilty. E.g. an eyewitness correctly identifies an assailant, but it is later revealed she wasn't wearing her prescription glasses.
      - hdfbdtbcdg 7y ago
        Indeed there are three states. Guilty, innocent and not sure. A lot rides on it. A heinous crime must be punished (and most likely future ones prevented) but we absolutely can't send innocent people to prison - and they shouldn't spend years under a cloud of suspicion. The police, CPS and the courts have a really difficult job.
sjy 7y ago
The point of a trial is to allow an independent tribunal of fact to make difficult factual decisions, like whether to believe a complainant’s oral testimony. In one of the cases cited in support of this change in practice [1] the police had access to a “computer disk containing 40,000 messages [which] revealed the alleged victim had pestered [the accused] for ‘casual sex’”, but this was not noticed until part-way through a trial which everyone had spent months preparing for. In this case, justice required that the private message history between the complainant and the accused be shared with the police and, if the case was to go to trial, the court. But the fact that the messages were discovered during the trial, rather than in the early days of the investigation, was a catastrophe for which the police apologised. [1]: https://www.bbc.com/news/uk-england-42873618 https://www.bbc.com/news/uk-england-42873618

DanBC 7y ago

Hang on, the courts in England do not, cannot by law, work like that. Here's an English barrister talking about it: https://twitter.com/BarristerSecret/status/1122823927804227586 https://twitter.com/BarristerSecret/status/11228239278042275...

sjy 7y ago
The Secret Barrister’s tweets don’t contradict the comment you replied to. Defence lawyers can subpoena relevant material, such as communications with the accused person, from prosecution witnesses. That material will not necessarily be admissible before the jury, and the court may restrict the use of subpoenas for privacy reasons as long as it doesn’t undermine the defendant’s right to a fair trial. The Secret Barrister is talking about what the police must do whether or not the accused person issues subpoenas. Police do have a duty to pursue all reasonable lines of inquiry. If it’s a rape allegation where the complainant had a previous relationship with the rapist, and the critical issue is the complainant’s credibility, would it ever be legally unreasonable for the police to ask for the victim to turn over their phone as the first step in the investigation? And if this occurs, couldn’t that have a chilling effect on crime reporting, even if the fruits of that search would not normally need to be disclosed to the accused (or would at least be ruled inadmissible at trial, after being disclosed to the accused)? Nobody wants unfamiliar officers trawling through their phones, but the law didn’t have to change to make it far more likely that victims of crime would suffer invasions of privacy as a side effect of a lawful and proper criminal investigation. We just started carrying around huge amounts of evidence about our private lives, including evidence relevant to crimes we might want to report, 24/7. We need to talk about whether that societal fact has changed the balance to be struck between the rights of victims and defendants in the criminal justice system.