Unsworn statements

The cases of Vybz Kartel, O.J. Simpson, Jodi Arias, and Oscar Pistorius

A striking feature of the recently concluded trial of Adidja 'Vybz Kartel' Palmer and his cronies was that none of the five accused men took the witness stand.

Rather, the accused men read brief statements proclaiming their innocence that they had prepared. These statements were read out from their seats behind their counsel.

Unlike the many witnesses who had gone before them, none of the accused men rose from their seats and took their positions in the witness box.

Persons have asked why the accused men did not take the stand. Given that the accused person will generally be a witness of the events (or portions thereof) from which the charge against him has arisen, the average person would expect the accused person to take the witness stand in his own defence.

However, in Jamaica, and in most other countries that evolved from the British common-law system, the accused person has three options: keep his seat and say nothing in his defence; make a statement from the "dock" (the area in the courtroom where an accused persons sits; or, take the stand as a witness in his own defence and give evidence under oath (or affirmation).

Where a statement is given from the dock, it is "unsworn". This means that the accused person does not make the statement swearing on the Bible (or affirming) that it is true. But even more important, the prosecutor cannot cross-examine the accused on the unsworn statement.

useless hangover

It should be noted that the unsworn statement from the dock is now abolished in England and several states in Australia, among others, having been considered as a useless hangover from a former age.

I agree that juries generally want to hear from the defendant. Silence is often inferred as a sign of guilt. However, some of the most widely watched trials in the United States, where the accused did not testify, resulted in not-guilty verdicts.

Two high-profile cases come to mind: O.J. Simpson and Casey Anthony, who both did not testify and were found not guilty of murder.

The danger of an accused person taking the witness stand in own defence was demonstrated last year in the Jodi Arias case in the United States.

Arias had been charged with murdering her on-again, off-again boyfriend. Arias opted to take the witness stand in her own defence, where she spent several days giving her account of what had taken place on the fateful day.

The dagger to the heart of her case, however, has largely been credited to the untiring, unrelenting cross-examination of lead prosecutor, Juan Martinez, who caused the witness to contradict herself and change her account on numerous occasions while he drilled away at her during cross.

The outcome in the Arias case can be contrasted with the cases of Simpson and Anthony, where both accused declined to take the stand and were eventually acquitted.

reasonable doubt

It would appear Kartel was attempting a Simpson-type defence. In the Simpson case, the process of collecting and storing the crime-scene evidence was so impugned, the credibility of the investigating officers so attacked, and their racial bigotry, exposed, that it created reasonable doubt in the minds of the members of the jury.

Suffice it to say, in the case of Kartel, that type of defence did not have quite the same outcome.

In the Oscar Pistorius case, currently unfolding in the Johannesburg High Court, the accused has decided to take the stand in his defence. Time will tell how successful this strategy will prove to be, but so far, his emotional evidence, which lasted over seven days, has been, if nothing else, touching at times, a bit overdone at others.

Gerrie Nel, the 'pit bull' prosecutor in the case, is as tough as nails, though, and Pistorius often came across as evasive, argumentative, uncertain, and ambiguous about crucial issues in the case. It should be noted, though, that in this case, the spectacle taking place in the witness box is only for the trial judge, assisted by two assessors, as there are no jury trials in South Africa, a legislative reform which, I daresay, is long overdue in Jamaica.

The Kartel case is, in my view, a fine illustration of the need to abolish jury trials in Jamaica.

But what do all these four cases - Palmer, Simpson, Arias, Pistorius - have in common? All the accused persons were celebrities (even Jodie Arias became a celebrity of sorts before her trial finally came around).

They were all regarded as being of above-average intelligence (the jury is still out on the intelligence quotients of Simpson and Anthony, and maybe that explains why they were not put on the witness stands) and charismatic to boot.

With all those characteristics to flaunt, why wouldn't Kartel, at the very least, have followed the path taken in the Arias and Pistorius cases?

Kartel and his co-accused chose the second option of giving unsworn statements from the dock. The question is, from a tactical point of view, did they make the correct decision? What value should the jury have placed on the accused persons' refusal to take the witness stand?

According to legal jurisprudence, the unsworn statement is not evidence in the true sense of the word but should be given only such weight as the tribunal deems fit. At times, this may be very little or none at all.

Now, if the accused man chooses to say nothing at all, then this could not be made the subject of any adverse comment by the judge or the prosecutor. But what are they allowed to say in the case of an unsworn statement from the dock?

The prosecutor is still not allowed to make any adverse comment on the accused man's choice. In Queen v Leary Walker, the Privy Council stated, "In such cases, the judge should make it clear to the jury that the accused was not obliged to go into the witness box but that he had completely free choice whether to do so or not."

The judge could then quite properly go on to say to the jury that they might have been wondering why the accused had elected to make an unsworn statement and that it was exclusively for them to make up their minds as to what value to attach to the unsworn statement. Apparently, in the Vybz Kartel case, the jury did not attach much value to the unsworn statements from the dock.

Shena Stubbs-Gibson is an attorney-at-law and legalcommentator. Sendfeedback to: Email: shena.stubbs@gleanerjm.com; Twitter: @shenapat