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Should Judges Convict Based on Their Speculations of Guilt?

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Should Judges Convict Based on Their Speculations of Guilt? Buffalo Public Interest Law Journal Volume 36 Volume 36 & 37 Article 7 1-1-2019 Should Judges Convict Based on Their Speculations of Guilt? Doron Menashe University of Haifa Eyal Gruner University of Haifa (Student) Follow this and additional works at: https://digitalcommons.law.buffalo.edu/bpilj Recommended Citation Doron Menashe & Eyal Gruner, Should Judges Convict Based on Their Speculations of Guilt?, 36 Buff. Envtl. L.J. 129 (2019). Available at: https://digitalcommons.law.buffalo.edu/bpilj/vol36/iss1/7 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Public Interest Law Journal by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. SHOULD JUDGES CONVICT BASED ON THEIR SPECULATIONS OF GUILT? DORON MENASHE* & EYAL GRUNER** INTRODUCTION May the court resort to speculations of guilt? I.e., may it raise, of its own initiative, hypotheses not posed by the prosecution and not directly arising from the evidence? In the Zadorov case, Justice Amit adopts speculations of guilt to explain away the use of a serrated knife' and foreign shoe prints.2 Whereas in the view of Justice Danziger, on the other hand, Associate Professor, Faculty of Law, University of Haifa. Research Student, Faculty of Law, University of Haifa (2009-2013). 1 C.A. 7939/10 Zadorov v. State of Israel, at sec. 28-29 of Justice Amit's opinion (Dec. 23, 2015) (Isr.) ("Zadorov"). Serrated knife marks were found on the dece- dent's chin, but all of the knives in the possession of the defendant, Zadorov, had a straight edge. According to his confession (later recanted), he worked with a retractable straight-edged utility knife (a "Japanese knife") and murdered her with the knife he worked with. Justice Amit speculated to reconcile these facts with the indictment: "Who can say with certainty that the appellant did not ultimately buy a cartridge with serrated blades for a retractable knife?" "Who can say with certainty that he did not use a grouting knife, which also has an interchangeable blade?" "Who can say with certainty that in the course of setting down and cutting the tiles, the appellant's blade did not scrape against something else, causing the blade to be altered, even ifjust a bit, into a serrated shape?" 2 Id. In the Zadorov case, three bloody shoe prints were found in the bathroom stall in which the decedent was found: On the toilet seat, on the toilet tank and on the wall separating the second stall from the third stall. According to the evidence from prosecution witness Shor, all of these imprints came from the same type of shoe. These shoe prints did not match even one of the pairs of shoe given to Shor to examine, and they did not match Zadorov's shoes. Justice Amit raised specula- tions to reconcile these facts with the indictment (Sec. 52 of his opinion): "The three foreign shoe prints may be explained by the chaos which was created once the body was discovered. Until the crime scene was properly sealed, various civilians, Magen David Adorn medics and police officers entered this small bathroom stall. List Tav/95 includes the name of fifteen people who are in the 130 Buffalo Public Interest Law Journal Vols. 36-37 it would seem that when dealing with criminal cases, speculative explanations of guilt should be inadmissible. In this review, we will address the legitimacy of resorting to hypothetical explanations (or "speculations") in order to fill in evidentiary gaps, i.e. situations in which the evidentiary picture is found lacking, and the court must determine, without specific evidence, what has occurred. Our analysis will focus on the filling of such gaps by the prosecution in criminal proceedings. We will distinguish between the general legitimacy of employing hypothetical explanations, on the one hand, and the discretion granted to accept, reject or give weight to these specific explanations, on the other hand. In this context, we will present four categories of evidence: Situations involving evidentiary gaps, situa- tions of evidentiary obstruction, situations of evidentiary paradoxes and "speculations of power." We will discuss the question of how the court should rule when any such category of evidence exists. investigative material (testimony and statements) as those who entered the scene of the crime, but only ten of them were interviewed on these prints. The size of the bathroom stall does not leave room for more than one person, two at best, to squeeze into the stall, and during the re-creation. the investigator who accompa- nied the appellant said spontaneously to the other police officers: 'There is no room for two people in this stall.' Who can say with certainty that with the chaos created, only those listed in List Tav/95 were present-a list that was compiled a month after the murder, relying on the names of people who appeared in the inves- tigative material? Why were Police Officer Shoshan David, Patrol Officer Arik, Station Commander Reuven Arbel, the Chief of the Investigations Department and Forensics Officer Shaked not questioned again? In another statement taken from Paramedic Eyal Ben Moshe on 7 January 2007, he notes that he and his partner were asked to move as little as possible at the scene, but he was never asked if someone else had climbed or stood on the toilet or the tank. In his first statement, from the day of the incident, Eyal Ben Moshe notes that Officer Reuven, who was at the scene, requested that the decedent not be moved, because he and the driver had 'entered the scene and left two sets of yellow medical gloves in the waste- basket in the bathroom, stepped in the area stained with blood and touched the body with our gloves ....' 2017-2019 Should Judges Convict I. THE LEGITIMACY OF TURNING TO SPECULATIVE EXPLANATIONS In our view, it is self-evident that relying on speculative or hypothetical explanations in criminal or civil proceedings is not illegitimate in principle. In practice, there is sometimes no other option. A lack of evidence is the paradigm in which the operation of inference is conducted, under conditions of uncertainty. Indeed, if there is one thing which may be stated with certainty regarding the establishment of facts in court on an evidentiary basis, it is that there can never be facts that are inferred from evidence with absolute certainty. The court cannot find facts by directly observing them, but rather, can only determine its findings about an event which has occurred in the past, an event for which the fact finders were not present, which they did not observe and which they naturally cannot recall. The court determines the facts in light of the impressions of witnesses and analysis of objective evidence, i.e. indirectly, all while the litigants (and, in particular, the defendant) have an interest in misleading it in order to advance their interests in achieving the legal results they seek. In keeping with John Locke's epistemologi- cal classifications in An Essay Concerning Human Understanding (1690), the source of knowledge employed by the court is in moral proofs, i.e. second-hand reports of sensory evidence, without the fact finder absorbing the sensory evidence personally, or first-hand, but inferring by a range of evidence, some of which consists of reports by witnesses of what they observed first-hand. This is to be distinguished from direct sensory observation and from logical or mathematical deduction.4 ' DORON MENASHE, EYAL GRUNER, REASONABLE DOUBT IN CRIMINAL PROCEDURE 41, 118 (Nebo, 2017). ' Id. at 141-42; Barbara Shapiro, To a Moral Certainty: Theories of Knowledge andAnglo-AmericanJuries 1600-1850, 38 HASTINGS L.J. 153, 158 (1986-1987); JOHN LOCKE, An Essay ConcerningHuman Understanding,book IV, ch. XVI (1690); N. SHOCHAT, The Moral and Legal Obligation to Protect the Innocent from False Conviction: A Critical and Analytical Examination of Normative and Procedural Obligations of the Legal System 262 (University of Haifa, Faculty of Law, 2015) (doctoral dissertation). Buffalo Public Interest Law Journal Vols. 36-37 When presented with evidence that cannot produce certainty, the fact finder cannot employ epistemic justification in the strong sense, but only in the weak sense. Epistemic justification in the strong sense is epistemic justification which yields absolute certain- ty in a conclusion, i.e. a conclusion beyond any doubt. However, such essential certainty is not realistic, and thus the only available justification in a situation of uncertainty is epistemic justification in the weak sense. Justification in the weak sense supports a conclu- sion which is not certain but is strong enough to dispel skepticism. Justification in the weak sense supports a conclusion which is stronger than any other-the "most correct" conclusion as opposed to the "correct" conclusion-and it supports a conclusion which is stronger than the opposite conclusion or the negation of said conclu- sion. Epistemic justification in the weak sense is not justification which creates certainty, but it does create theories which have vary- ing levels of epistemic power, or varying levels of reasonability.5 Therefore, the choice is to rely on epistemic justification in the weak sense, or to give up on epistemic justification altogether. Choosing the latter is inappropriate, as this all-or-nothing approach means either having epistemically-informative perfection or an utter rejection of any epistemic resource. This approach gives full weight to the minor possibility of error, and no weight at all to arguments which have even a small measure of uncertainty. If we refuse to accept any claim that is not certain, this means passing up the ability to prefer arguments if they are not certain.
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