NCJ Number
84739
Date Published
1981
Length
24 pages
Annotation
A justice of the Supreme Court of New South Wales (Australia) discusses the law of evidence in New South Wales, with emphasis on ways in which the rules of evidence can hinder the fact-finding process and confuse the lay persons who serve on juries in criminal cases.
Abstract
Particular problem areas include situations in which material bearing on the question of fact is withheld from the jury, when the jury is directed to disregard certain evidence, and when the jury is directed to consider certain evidence regarding some issues but not others. It these cases, jurors may believe that they have not been told the whole story, that they must pretend not to know something which they do know, or that they must make that pretense for some purposes but not for others. Thus, jurors may be given directions in terms which they may not understand and which they cannot reasonably be expected to respect. The specific areas in which this problem is most acute and in which reform is needed are hearsay, confessions, and the onus on the defense to persuade rather than merely to present evidence. Situations involving corroboration also generally involve complex and confusing directions to the jury. Since juries bring both experience and commonsense to bear on their task, judges should avoid confusing them with legal jargon. To this end, the law of evidence should be reviewed and reformed.