Evidence is easily swept away by Sympathy
This should never happen, in a court that takes justice seriously.
This is so fundamental to successfully delivering justice, that the judicial oath was written to cover this issue. (see Oaths and Declarations Act www.legislation.co.nz)
In the [human]-animal, decisions leading to action, are made in the emotional part of the brain. This enables a fast response to threats, as at times it is needed for survival.
A rational decision takes longer to complete, than an emotional decision. A rational decision can only be made, if the animal has inhibited the emotionally based reaction, long enough to complete the rational analysis.
Many people are not prepared to put in the time and effort, to complete a rational analysis, when the emotive decision can be made easily and relatively effortlessly.
Open courts (or note taking reporters, or recordings) allow the public to know what is going on in a court and to review the judge’s decision. This allows the public to apply a typically wise and well informed corrective force onto any errant judge.
Secret caughts remove these safety mechanisms, so that “judges” may easily drift out of adjustment. The collegial structure of the judiciary doesn’t give the Principal judge of each court any useful remedial power over faulty “judges”.
When you are considering making a court application, or responding to one, then before putting time into gathering evidence, carefully consider where you stand in the Sympathy stakes?
Don’t delude yourself in self-sympathy. You need to find out which judges you might meet and understand their values.
Are they prepared to listen and carefully weigh evidence, or do they work on the intuitive/emotive approach?
You cannot safely evaluate their values from published judgements. They usually do not show enough of the evidence, to allow you to make any useful judgement of the judge. Besides, it seems that judges restrictively select the judgements that they pass on to the legal publishers, so you could easily be mislead by the published judgements. You need access to a fuller understanding of what goes on in these caughts. Talk to a good number of their previous customers, before you make your decisions.
Can you make your application at such a time, as to prevent it being heard by the least reliable judge? This is difficult for non-custodial parents to achieve, due to the low priority given to their applications, resulting in very long delays before getting to a real hearing.
Men tend to be socialised by work pressures, into the “rational” model. This may result in them omitting to consider sympathy, before they consider issues regarding evidence. You cannot manage your evidence, if you haven’t got sympathy issues under some sort of control, because in this case you will never get the judge to the evidence anyway. Men are sometimes naive about the worthlessness of evidence, once it has been swept away in a flood of sympathy. Sympathy is a fickle mistress.
To find well documented examples of judgements made against the facts, we can recall the following recent cases from daily newspapers:
Three Whakatane police were acquitted of assaulting a detained prisoner, despite 3 hours of video record showing this quite clearly.
Stephen Wallace was shot by a policeman, not in self defence. He was tried for murder, in a private prosecution and acquitted
Judge Sharp discharged the prosecution of two women charged with perjury, after noting the technicality that there was no permission to use evidence from familycaught, in the open District Court. (The police shy away from prosecuting perjury, as they know that the judges usually spring the accused, so why waste money even trying to prosecute women?)
It seems that to punish hard working and serving police officers or women, seems to be too severe, so there is no punishment at all (of course other than the cost of their legal defence).
Although Parliament passed laws and set maximum penalties, when sacred cows are faced with punishment for their actions, the judges don’t have the heart to attach the set punishments for the crimes. This results in the total loss of the deterrence function of the court system.
When people know (or even just think mistakenly) that they are beyond the reach of the law, then our society becomes unnecessarily a more dangerous place. The accused who have evaded the responsibility for their actions, then know that they are free to do it again and again.
An 18 year old man in Alexandra was prosecuted for dangerous driving. He produced evidence from two independent traffic engineers, that supported his statement and disproved the policeman’s evidence. The JPs refused to accept the boy’s statement, supported by the two traffic engineer expert witnesses, against the policeman’s word. The JPs simply refused to weigh the evidence, the uniform carried more weight. A later appeal in the High Court reversed the earlier lower court judgement, when the police realised that they didn’t have a leg to stand on and if they continued to abuse the boy using the caught process, that the young man would appeal until the prosecution case was eventually thrown out..
The crux of this discussion, is that sympathy/intuition is quick and easy to apply.
However, it fairly frequently gets it very wrong. It is based on assumptions, instead of facts, weighed in the light of good knowledge about how the world works. Intuition often detects a lie, but telling what did happen takes more than just a quick guess!
These assumptions are sometimes checked, but usually not.
This problem is endemic in all of our courts.
However, it is a wider problem in our society. Lets look at the performance of Parliament and voters.
This acceptance of guessing, intuitive, assuming, emotive, prejudiced and sympathetic decision making, explains why voter’s sympathies are 25 years behind the social situation.
Note that I haven’t criticised politicians, they can turn on a dime, once they perceive changes in voter’s attitudes. These time lags result from us voters being lazy, slow learners. Learning and gathering up to date information does take some effort.
This is why so many of our laws are a sensible response, but to the social situations that pertained 25 years ago. Good, but 25 years too late! Unfortunately the problem isn’t solved in 25 years, as there is often an overswing and this is followed by the reverse problem hanging in for a further 10 or 15 years. This does give a large incentive to put in some effort and solve these problems quickly and accurately.
Eventually the truth will come fully into the public’s awareness. In the meantime, quite a few people may have been mangled by inappropriate and sometimes quite destructive Government responses. In particular, minorities suffer in these situations. When change is ongoing, the legislation may never become appropriate to the social environment it is intended to manage.
These problems will be greatly reduced, if voters choose to become well informed.
You can do your part to make our society more responsive to what is happening, by putting in a reasonable amount of effort into making your voting decision. Life is dangerous, if we take the shortcuts all the time.
Errors in values are often hidden under issues of fact – thus disguising decisions based on prejudice as having been decided under some principle. The best writer on this that I have seen, is Ronald K. Henry. Although he writes for USA, what he says is just as true in NZ, when references to legislation is changed appropriately.
People do get irritated by talking about gross miscarriages of justice, especially it seems the legal workers. These complainers should just go away, get over it and suffer out of sight and in silence. Who could care less?
Protect your family, by caring.