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1/ This is going to be a semi-long thread detailing a problem that I think helps explain why "criminal justice" is so slow. Reason: the law is so complex in certain areas, most lawyers and judges can't understand it, sparking lengthy battles.
2/ I want to stress at the outset that this example, which I had personal experience with, involves the Crown taking a position, but I realize that the very same thing happens with the defence - it's just the example I'm using involves the Crown.
3/ The law is so complex in certain areas that skirmishes over things that should be resolved easily are not uncommon. I did a seminar on prior consistent statements yesterday that is Exhibit A. Most lawyers and judges don't get how PCS work. This leads to skirmishes.
4/ To be clear, I don't blame the parties. The law on PCS, especially with respect to the narrative, is incredibly complex. I totally get why the Crown tries to adduce it, and why the defence resists - but figuring out how it works is messy - and time consuming.
5/ Here is a recent example of how legal complexity on questions of procedure and proof becomes messy, time-consuming - and expensive: for the client, and for the justice system in general.
6/ In a recent case I was involved with, the Crown takes a position on a particular point of law. Defence counsel thinks the position is wrong, but it's another complex area where the appellate courts have been obtuse.
7/ Defence counsel contacts me. Now, I'm a law professor who studies many of these issues full time. I listen to the Crown's position and immediately think "it's ridiculous". But even while doing that, I recognize why they'd reach that conclusion.
8/ The law in the area is complex. There is no clear statutory provision. You "could" interpret the law that way, so as to benefit the Crown. But to me, the wider direction of the law precludes that interpretation. It simply does not make sense to read the law that way.
9/ Keep in mind, we are talking about a fairly core area of criminal law - not something esoteric. So, defence counsel and I now have to research a position, to counteract the Crown suggestion. This takes time - not as much as it normally would, because I have an idea....
10/ ... about why the Crown suggestion is unreasonable, but still. It's a few hours of prep to put a coherent suggestion together for the trial judge, who seems intrigued by the idea.
11/ Crown refuses to budge, so we're off to court. Three hours of submissions ensue. Judge now has to write and issue a ruling, so there's more delay and time. Everything else in the trial grinds to a stop while we address this issue.
12/ In the end, the trial judge reaches what, to my mind, was the inevitable conclusion, and sides with the defence. [This does not always happen - which would then provoke an appeal hearing on the issue....]. Hooray! Or is it Hooray? The system spent a day sorting out...
13/ ... a matter that should have been crystal clear to all concerned. It wasn't because the case law in the area is all over the map, and it raises issues of complexity that need to be addressed.
14/ Now, let me be clear. I don't think there is any way to eradicate complexity from the law. Some legal problems are complex! There aren't always easy answers!! It is an adversarial system, and parties will take positions that require "combat", and preparation.
15/ But at the same time, I heartily believe that our common law system does not do NEARLY enough to put the value of reducing complexity as a CORE value in our system. Honestly, if I were a legislator or judge, I would put the reduction of complexity as a primary...
16/ value in EVERY decision I made - especially where procedure or the law of evidence is concerned. There is a direct connection between complexity of structure and delay. It is one reason why I am so against "principled" approaches to evidentiary admissibility as a...
17/ General idea. There is no evidence to suggest that trial lawyers and judges, with busy practices and tons to keep track of, can apply these principles like appellate judges can. It's why we should reduce complexity wherever possible.
18/ Here are two examples. The BEST law reform in recent history is section 16.1 of the CEA (my least favorite law). It changed our entire approach to kids' evidence, and reduced complexity in the process. Section 16 applications and appeals used to occur daily. Now, gone.
19/ I am doing some research with @Steven_Penney about the legal treatment of PIS as hearsay. My hypothesis is that these applications, which are mandatory (absent consent) are a waste of time, and that it's desirable to simplify EVEN IF WE GET A FEW WRONG in the process.
20/ In short correctness should always be a goal of evidence and procedural law - but this goal CANNOT come at the expense of ease of decision making. We'll never achieve correctness or cutting delay if reducing complexity is not at the heart of the law of ev. and procedure: FIN.
