Columns

Why we can't do like them

BY JASON McKAY

Sunday, April 15, 2018

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I often hear the comparison between Jamaica and the United States of America (USA) regarding successes in crime fighting or prosecution. The comparison is normally a negative depiction of our environment by virtue of apparent lack of success.

I have even heard comparisons to the level of control the police, and by extension the Government, has in Singapore versus the control exercised over our populace. What I never hear is why.

The assumption is often resources, but what is ignored is the legal framework in the United States versus the legal framework in Jamaica.

There are literally tactics that are allowed in the United States — which make up for the fundamental basis of their success — that are disallowed in our system. Let me begin with the right to question a suspect without an attorney.

You are entitled to ask a suspect questions in relation to a crime. However, you have to first 'caution him'. This means you are essentially telling him that he doesn't have to talk to you and if he does, he may go to prison.

Okay, that seems similar to the Miranda Rights in the United States. Not quite. Here is where they win and we lose. If the suspect decides to give a written confession, it is of no use in a court of law if we don't allow him to have his lawyer present. So he could write that he killed 20 people but it's of no legal value unless his lawyer is there.

Now, bear in mind when he first came into your custody you told him he doesn't have to talk and if he does he may go to prison. Now assume he really wants to give a formal, written confession and you're telling him to shut up till his lawyer comes. The lawyer then arrives and is obligated to advise the suspect of the prison door locking behind him. His advice therefore is 'shut your mouth'.

Does this make the lawyer a bad guy? Not really. He's just doing his job. Let us now compare this to an American scenario.

The American suspect is also advised that a lawyer can be retained for him. But he can be questioned, and unless he requests the questioning to end he can implicate himself on video and it's admissible in a court of law. He can give a written confession without his lawyer present and this also is admissible in a court of law.

This difference is huge. The number of suspects in the United States who implicate themselves results for more than half of that country's convictions. So when you are looking at an American police reality television series, look for this factor and consider the impact that this alone this has in creating one-sided results.

The differences do not stop there. In an American court you can introduce the criminal record of the accused and actually detail other crimes committed by him. In a Jamaican court you can only introduce evidence that is germane to that particular case.

This goes as far as even preventing facts in a case being presented relative to others accused in the same matter. So, for example, if you charge three men for rape and one pleads guilty to aiding and abetting, his confession of participating in the crime cannot be brought up in the trial of the other two.

Another little-known fact of the Jamaican scenario is that you have to serve the defence representing the accused man with all statements that you have collected and intend to use against him. This includes the names of the witnesses and what they say in the statements.

This was not always the case. Before the Linton Berry murder case, the defence never saw statements.

This changed based on legal rulings relating to this trial. This is why there is often an assumption that information is being leaked by law enforcement to criminals, but that's simply not the case. The law says you have to serve the accused with the statements that have resulted in him being charged.

Let's now look at Singapore, Jamaica's new darling. Whilst you may admire their progress, consider that they did lock up their Leader of the Opposition Chia Thye Poh for 32 years.

They also have the Internal Security Act, which allows for indefinite detention without charge or any recourse to wrongful detention.

This is, in effect, a dictatorship.

This gives their crime-fighting ability a significant boost because they can arrest on reputation, intelligence or former criminal history, or simply because they don't like you.

I guarantee if the Jamaican Government had this tool our murders would be restricted to the domestic, but we would never have been able to vote out Mr Bruce Golding, Mrs Portia Simpson-Miller, Mr Edward Seaga, Mr Michael Manley and even Mr Andrew Holness.

Although I was sorry to see some of them go, I would have been far more upset if I didn't have a choice if they stayed. This is the price of freedom, these are just not technicalities.

It is rules like ours that stop that knock on the door in the middle of the night.

The comparative to the United States is far less drastic and one could ask why we have these silly little rules that give the criminal all these rights. That is because although it serves the criminal it is intended to protect the citizen. So that lawyer that has to be present when a confession is given is intended to prevent the confession being beaten out of the suspect rather, than given voluntarily.

The Guilford Six, in England in 1972, show the danger of confessions being accepted into evidence without an attorney being present.

That other rule we spoke of, where your past deeds can't be used in your present case, exists so you are not constantly punished for a crime for which you have already been punished.

The difference is in our history. Our Constitution was written on different principals, the United States had been oppressed by a foreign government. When they created their constitution they kept millions in chains for almost 100 years.

After the Jamaican Constitution was written, against the background of hundreds of years of British oppression, it was intended and to accomplished the freedom of all upon it becoming the foundation of our law.

Our legal system is designed to be free, even if it results in the destruction of the entire country.

The Americans were far more pragmatic and Singapore wasn't even considering freedom when they put their rules in place.

My personal feeling is that the long-term goal should be justice for all. You should get the right to face your accusers — and trial by ambush should not be allowed.

However, there needs to be some latitude in the cases where persons incriminate themselves if they so desire, because all criminals are idiots. It's just their level of idiocy that varies, and it is this facet of their personality that contributes to them committing crimes and therefore this folly should be available to assist in them being brought to justice.

Freedom, however, is being achieved at the cost of justice for the victim. So although our system was borne out of the good intensions of our 'Founding Fathers', we need to accept that a short-to medium-term working solution is going to result in the loss of some of our freedoms.

What is important is that the end game results in a system where no one is oppressed by either gang or government, because at this point freedom of the citizen is a geographical consideration and not a national reality.

Jason McKay is a criminologist

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