Thursday, December 16, 2010

As Amanda Knox Via Her Statement Has Now Placed “Will She Testify?” Front And Center…

Posted by Cardiol MD





She sure has created an interesting cliffhanger.

Last Saturday Amanda Knox spoke from her seat beside her defense team and she was not subjected to cross-examination.

If she does choose to mount the stand to back up her claims with some testimony, she will be subject to cross examination, as will Raffaele Sollecito. 

What may the judges and lay judges be allowed to deduce if neither of them mount the stand, or alternatively refuse to answer?

This involves the legal concepts of the Privilege against Self-Incrimination, the Right to Silence, and the Right to Lie.

In the US prosecutors are prohibited from commenting adversely on a defendant’s Exercise of the Right to Silence at trial, on the argument that doing so would violate the privilege against self-incrimination.

But this may be circumvented as demonstrated in the Duke lacrosse-team rape frame-up by the prosecutor.

The DukeLax prosecutor (echoed by many others in Durham and elsewhere) falsely alleged, publicly, a lacrosse-player “wall-of-silence” as persuasive evidence in favor of guilt, even when he knew full-well that the Laxers had transparently cooperated with prosecutorial investigators.

So much for “enshrinement” of the right to silence in the US.

There is no argument that in all three countries, Italy and the US and the UK, criminal defendants have the right to remain silent. This means that they do not have to speak in their own defence, if they choose not to do so.

However, Italy takes the privilege against self-incrimination such a giant step further that a guilty defendant, if given the choice, might be wise to choose trial in Italy, in preference to trial in either the US. or the UK.:

First, there is a significant difference between the use of the word “testify” in Anglo-American common law and its use in Italian law. Iin the former a testifying-defendant is sworn to tell the truth under oath and pain of perjury. Iin the latter, a defendant, when called to the stand, is not even “a witness”, and is not under oath:

According to the Italian Code of Criminal Procedure a defendant can be called to speak, but may refuse to “bear testimony”

Technically, a defendant does not “bear testimony”, or testify; a defendant is not even “a witness” ; in Italian, a witness is interrogato, whereas a defendant is esaminato and may refuse to answer many questions.

A defendant, in Italy, can also lie without fear of legal sanction.

Since a defendant does not take an oath and since a defendant is not technically a witness, if a defendant tells a lie, the defendant is not committing perjury.

A defendant can choose to make spontaneous statements to the Judge; and can tell whatever she/he wishes to tell and can choose not to answer any questions. In the Perugia case too, a defendant can lie without legal sanction.

So, if Amanda Knox speaks at her trial, neither the Judges, the Prosecutors, nor Defendant’s Counsel neccessarily expect her to speak the truth - they may expect her to lie her head off.

Prosecutors will not try to directly expose her lies so much as they will try to expose the contradictions in her various statements.

Amanda Knox’s prepared statement-to-the-court at her trial [as opposed to her testimony] restricted itself to the subject of the false accusations she made against Patrick Lumumba. This unsworn statement could not be submitted to cross-examination. Such unsworn statements are also possible in the other jurisdictions.

In the case of the Meredith;s murder there seems to be an ample supply of evidence showing their guilt, such as the multiple contradictions both between and within their statements.

Furthermore, even if no one, ever, comments adversely on these defendant’s exercise of the right to silence, think of Simon and Garfunkel’s famous “Sounds of Silence”

That song reminds us that finders-of-fact, at least subliminally, can hardly avoid being influenced by accused defendants’ silence.




Comments

Thank you for clarifying things Cardiol. We, in the USA and UK, are so used to the word “testify” that we, including me, have used it liberally on this site - inappropriately. If Italians use it - at least in the context of a trial -  it does not mean the same thing at all!

The reason lies in the basic difference between the two systems.

It has taken me some time to come up with this comment and maybe someone has already beaten me to it If so, apologies for boring you all over again!

1) In the USA and UK, we have what is called the accusatorial system. The relevant State, or the Crown in the UK, accuse and prosecute and the accused defends himself against this.

The Judge is merely a referee in this contest although he does sum up the evidence and direct on law at the close of play, for the benefit of the jury. No judge or in fact anyone with legal qualifications is allowed to sit on the jury.

The idea behind a defendant testifying i.e taking the oath, is notionally to give the defendant’s evidence the same weight as a prosecution witness. That is fair play as is the right to cross examine.

I don’t know about the USA but in the UK certain adverse inferences can be drawn by the jury, and only in a limited set of circumstances, from a failure by a suspect to answer questions from the police.

Otherwise the right to silence is enshrined during police questioning and in court. There is no concept of “esaminato” although I am not clear in any event what this means. Did you mean “non esaminato” ? I think this would then mean “not available for examination” i.e cross examination. I am guessing there.

The right to silence cannot prevent adverse inferences being drawn if an accused testifies but then refuses to answer questions, at least in the UK. In the USA a defendant can take the Fifth Amendment, is that right? I don’t know whether this means no adverse inference can be drawn.

It always amuses me when on TV a defendant takes the Fifth Amendment on the grounds that answering might incriminate him. A sure sign that he has something incriminating to hide. Perhaps my american friends can put me right here.

If a defendant perjures himself there could be a separate prosecution, but this rarely happens.

2) The Italian system, as in much of continental Europe, is based upon the inquisitorial system set up by the Napoleonic Code. The idea is not so much to let two sides slog it out but for the Court to take an active part in getting at the truth.

Hence the actual charges can be changed at the direction of the court as the case progresses through the system. Hence the court can appoint, as it did in this case, independent experts i.e accountable to the court, in addition to the experts called by each side. Additional witnesses can be called by the court. This is not left to the option of the prosecution and the defence.

Even the presiding judge sits with the jury. It all gives a very professional look to the process.

The Italian system distrusts the theatrics of the accusatorial system. No Perry Mason style antics. No witnesses broken on the witness stand following a vigorous cross-examination.

In Italy there is no point in the accused testifying. It adds nothing. We all know that if he is guilty he is going to lie on oath anyway. It is the gathering of information and evidence that the inquisatorial system is after.

One thing I don’t know is whether any witness testifies on oath in an italian court.

Both systems have their advantages and drawbacks.

Posted by James Raper on 12/16/10 at 07:58 PM | #

Excellent article, Cardiol.

I heard that “testify” is actually a Latin word, from ancient Rome. Soldiers who were swearing their oath would place one hand across their testicles when doing so, thus the origin of the word.

It would be ungentlemanly and ungallant for me to ponder if Amanda Knox has a big enough hand.

Posted by Janus on 12/16/10 at 11:30 PM | #

Beautiful.

In the past two-plus years we have been so fortunate to have three very highly qualified Italian legal posters (Nicki and then Commmissario Montalbano, and then Cesare beccaria) who explained so very elegantly and neatly how this is a series, cautious, professional-based pro-defendant system.

One that actually performs exactly opposite to the smearing charges of the conspiracists that it was manipulated or hoodwinked or out to save the partcipants’ face.

And now we are so fortunate to have two highly qualified non-Italian legal posters (Cardiol and James) demonstrating some real respect for the system.

Many other lawyers sympathetic to justice for Meredith have also been in touch with us in the past. They tell us they see nothing wrong going on here and the depth of understanding achieved at the time of the verdict or decision on appeal is awesome by any standard.

It is simply on a higher plane than juries in common-law countries generally achieve. And the judges dont just sit on the sidelines. When they write thoase amazing sentencing reports they put their whole careers on the line.

Perhaps now a question to the Knox-Mellas-Marriott-Simon campaign. 

You have often claimed that a half of all the appeals in Italy get overturned on appeal. The figure is actually about 15 percent. Was it so smart to simply make stuff up?

Posted by Peter Quennell on 12/17/10 at 03:52 AM | #

In the Duke Lacrosse case, the so-called “wall of silence” was one of the most impressive hoaxes within the hoax.

The lacrosse captains living at the house gave EXTENSIVE interviews to the police. It’s only when the police and the prosecutor, DA Mike Nifong, realized there was no crime and they were about to indict innocent people that they started the massive media attack.

I know you mentioned this precise thing, but I think it needs to be restated that the bringing up of the “Wall” was only after they knew the players were innocent.

Posted by razvan on 02/16/11 at 06:07 PM | #

Hi razvan. Great that you draw attention again to Cardiol’s post. I followed the Duke lacrosse case closely as it was such a draw-dropping perversion and heading back from New Orleans a couple of months ago I cruised around Duke and Durham town.

Yeah the wall of silence was quite deliberate in the face of strong evidence for those that cared to look that the girl had made up false charges and was then co-opted as a vehicle to drive a Nifong re-election campaign and sundry grudges against Duke.

And Amanda Knox now faces THREE will-she-testify situations.

1) At her own appeal as her opening statement seemed to forshadow,

2) At her own trial for defamation of the officers, as she seems to have no other evidence.

3) At her parents trial for defamation, as they too seem to have no other evidence.

In the two defamation trials the officers could subpoena her to testify. And in all three cases she will be subject for the first time to unfettered cross-examination.

Posted by Peter Quennell on 02/16/11 at 06:24 PM | #

Hi Peter,

Thanks for your words. Since we haven’t been properly introduced, a bit about myself. I arrived to TJMK a while back via a link from the Duke Rape Hoax referring to the false accusation against Patrick.

Again, I am an outside advocate against false accusations, and thus clearly I started with browsing that part of this excellent site in Meredith’s memory. It was amazing that despite the large publicity involving this trial, Patrick’s ordeal was minimized accross the board. I cannot find a single other place that has even a fraction of the quantity of material you have here on that topic.

Anyway, as for the appeal, it would be exceedingly foolish for Amanda to do so, primarily due to, what I am to understand, a possible increase in sentencing, which I don’t believe is possible in the USA.

Also, what would be her goal? Aren’t appeals won almost exclusively on accusing the lower court (US) of making mistakes? Or will she simply admit guilt and try that avenue?

Although now that I have read again what Cardiol said, there seems to be little danger for her to do so. I am curious how the prosecutors would justify an increase her sentence at all?

-razvan

ps: to the comment of: So much for “enshrinement” of the right to silence in the US. It’s probably best not to take North Carolina as an example of justice in the US unless used to counter the whole “Injustice against Americans in Italy” argument. North Carolina is firmly dead last (50th) in the categories of justice, prosecutorial transparrence and lack of corruption.

Just to give you guys another example, the Alan Gell murder case (that prompted a lot of the changes in NC to move towards a less medieval judicial system) that finished in 2004.

The prosecutors (with real ties to the Duke case as well) not only didn’t reveal exculpatory evidence (the two women that accused Gell were talking to the police on the phone about the need to make up a story to implicate Gell), but the prosecutors actually inexplicably MODIFIED the murder date (from the April 9 to the April 3) to better coincide to when Gell wasn’t in prison (he was arrested on the 7th of April for a non-related auto theft).

Gell was sentenced to death and spent 9 years in prison on death row, completely and clearly innocent of the murder charge, before being released.

Feel free to throw that one at anyone arguing against the profesionalism of Mignini and it not happening anywhere in the US.

Posted by razvan on 02/17/11 at 10:34 PM | #

Hi, razvan,

“...the bringing up of the “Wall” was only after they knew the players were innocent”

Was that on March, 29th, 2006? I’d forgotten they knew the players were innocent that early.

The comment “So much for “enshrinement” of the right to silence in the US.”. was a reference to an earlier Post on TJMK.

And Yes, NC is no US standard-bearer for constitutional rights.

Do you detect any connection between alleged-guilt for an imaginary-crime, and alleged-innocence on the imaginary-side of reasonable doubt?

Posted by Cardiol MD on 02/18/11 at 11:59 PM | #

Hey Cardiol, sorry for the late reply.

>> Was that on March, 29th, 2006? I’d forgotten they knew the players were innocent that early.

In the DHC hearing, Investigator Himan acknowledges that the SBI results of DNA were already back by March 27th. He, under oath, says that Nifong said: “we are fucked” when presented with the results. On the 28th the massive publicity stunt begins under the direction of Nifong, including the incredibly offensive “Crimestoppers” postings and national media interviews.

The police knew MUCH earlier. Sgt. John Shelton reported that he believed the false accuser was lying almost immediately. Nurses witnessing Crystal Mangum’s behaviour were ready to commit her for mental evaluation and clearly stated that rape victims do not behave as such.

The Durham police, other than the few that remained honest, fed a series of inflamatory (and knowingly false) statements to the media from about the 22nd on.

>> Do you detect any connection between alleged-guilt for an imaginary-crime, and alleged-innocence on the imaginary-side of reasonable doubt?

Absolutely. Let me list some, hopefully before I bore you to tears.

In both cases, innocent people are suffering based upon the criminal wrongdoings of others.

It’s generally difficult to approximate the two cases, given how starking different they are in most regards (as i said, what led me here was how Patrick’s life was ruined based upon nothing but a word).

In this case, there is a murder and clear and cogent evidence of the perpetrators. If nothing else, the kids of the Duke Lacrosse team gave the precise same (and true) story to the police, whereas Amanda gave several and misleading versions, and even after reading the incredibly detailed analysis here, they are all still very confusing. The story is incredibly important because it is what puts all the pieces together, or in her case, break it all apart.

———-

Another link is how supporters of either Amanda or the Duke prosecution not only ignore facts willy-nilly but make up horribly incorrect and enraging statements to maintain an untenable position that flies in the face of all human decency.

You see, one cannot blame Amanda for trying whatever she is trying. She is completely entitled to carve the best life possible for herself and that clearly means getting out of prison.

The people that willfully ignore the evidence and instead maintain the same tired old story about how there is no evidence, how the italian prosecution behaved this way only to punish an American, people like Maria Cantwell.

———-

Lis Wiehl is 0/2 in the cases. She was one of the earliest to condemn the Duke players as guilty, and, in a video posted here (I think it’s http://www.youtube.com/watch?v=AF0qlaEhryE&feature=player_embedded) was lambasting the italian prosecution and displayed curious ignorance of the case.

Much like the Duke case. 😊

———-

Joan Foster, one of the great heroes of the Duke case, posted this about Amanda (I think fairly early in the case):

I have no idea if Knox is innocent or guilty but , IMO, there is something “off” about this young woman. I realize mores have changed, but I’m pretty sure most young women I know would not have sex with a stranger on a train. I know there are different ways to react to tragedy…but after finding your roommate slaughtered, naked with her throat slit…turning cartwheels, doing the splits, “making out” and buying lingerie with your new boyfriend (both at the police station and right outside the murder scene) within the first hours…seems really sick. She may not be a murderer but she is certainly not the All American girl that our press would have us believe.
———-


Finally, people do compare Amanda’s morphing story to the morphing story of the duke false accuser.

Ok, I am exhausted, but this all hopefully makes sense. I am not sure if this is what you have asked, but it’s what I have.

Posted by razvan on 02/24/11 at 10:16 PM | #


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