Sunday, January 27, 2008
Approximately 100 cases and Jamaica's Evidence Act look like they will be reviewed in the wake of Detective Constable Carey Lyn-Sue's confession that he falsified witness statements that were tendered as evidence in a murder case against a 22 year-old St. James man. After facing pressure to reduce the huge backlog in the Jamaican court system due to witness absenteeism, the previous administration amended Jamaica's Evidence Act. Amended Section 31D made provision for statements to be admissible in criminal proceedings in certain circumstances, where the witness:
a) Is dead
b) Is unfit, by reason of his bodily or mental condition, to attend as a witness
c) Is outside of Jamaica and it is not reasonably practicable to secure his attendance
d) Cannot be found after all reasonable steps have been taken to find him; or
e) Is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person.
The amended act also allows for video evidence to be admitted where a witness feels physically threatened in coming to court.
In the wake of Carey Lyn-Sue's confession, however, current Prime Minister Bruce Golding has instructed Attorney General Dorothy Lightbourne to review the act and to determine whether this was an isolated incident, or, as one public defender has claimed, whether Section 31D has been consistently abused by unscrupulous 'investigators.' Meanwhile, former Police Commissioner Trevor MacMillan has asked that amnesty be given to cops so that those who had falsified statements would come forward, allowing the innocent to be freed.
To me, it seems clear that Jamaica went too far in liberalizing its rules regarding the admissibility of statements made by unavailable witnesses. While the United States allows for the admission of statements by witnesses who are unavailable under Federal Rule of Evidence 804(a) and state counterparts, it only does so when the statement at issue is thought to be reliable pursuant to one of the Rule 804(b) exceptions, which include former testimony and statements against interest.
Clearly, statements admitted under the former testimony exception aren't subject to police fabrication because there is a record of this testimony. Furthermore, while the police could fabricate a statement against interest allegedly made to them, pursuant to the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), such a statement would be inadmissible against a criminal defendant under the Confrontation Clause.