I have recently come
across the strange and very tragic case of the 1994 Dunedin Bain
family shootings which only left one survivor. It happened a long
time ago, though I believe there is something to be learned from it.
Its unusual in that there
are only two accepted possibilities:
David, the eldest child at
22 did it.
Robin, the father did it.
In the original trial,
David was found guilty. In a retrial, David was found not guilty
and released after 13 years in prison.
If David did not do it,
then the system has been disappointing because an innocent man has
been in prison for 13 years.
If David did do it, then
the system has been disappointing because a guilty man has been
released from prison prematurely and much time and money has been
wasted on a retrial etc.
There are a number of
trouble with retrials after a long time. Evidence may have become
tarnished or lost. Witnesses may have moved on, died or otherwise
become unavailable. People's memories might have faded somewhat. The
defendant may have matured and feelings of guilt may have been
eroded.
This leads to the idea of
changing the process. There are a number of possibilities here, but I
will just mention one.
"The right to remain
silent" has obscure origins in the history of ancient Rome. The
Classical (Ancient) Greeks did not think much of it. They didn't have
a high opinion of someone who would not verbally defend themselves in
a court of law. “Right to remain silent” is not sacred and
something worth questioning.
My proposal is to abandon
the "right to remain silent" in retrials, such as David
Bain's retrial. If the defendant refuses to answer a question
satisfactorily, then the judge would have the right to direct the
jury to assume the worst.
Allowing the defendant to
be examined/cross-examined could greatly speed up the process. It
could also deter the "I am guilty but will appeal because I
have nothing to lose" brigade.
If a person is truly
sincere, they will have the courage to take the stand.