Third-Party Financing of Litigation: Report of Ethical Qualms in Australia

See Joe Palazzolo, Australia: A Cautionary Tale of Litigation Financing? WSJ Blogs (Feb. 10, 2012):

"Since Australia’s high court in 2006 gave litigation funding its stamp of approval, the industry has grown significantly. In a new report sponsored by the U.S. Chamber Institute for Legal Reform, an Australian law professor [Michael Legg of the University of New South {Wales}] takes a look at how the practice — where businesses invest in high-stakes legal disputes, sharing the risks and potential rewards — creates conflicts of interest.

The conflict argument has been made in the U.S., which is still feeling its way in the field, but Australia’s track record is longer. And the report concludes that the country’s experience should be a lesson to the legal community here [in the U.S.]."

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Canada Deals with Question of Competence of Severely Disabled Witnness

The decision is R. v. D.A.I., 2012 Supreme Court of Canada 5 (Feb. 19, 2012).

The case was a criminal trial for sexual assault.


The alleged victim was a 26 year-old woman, 22 at the time of the trial, with a mental age of a three- to six-year old child.
The trial judge barred the victim from testifying.
Defendant was acquitted. The Crown (the prosecution) appealed from the acquittal.
The Supreme Court of Candada reversed by 6-3 and ordered a new trial.
Chief Justice McLachlin, speaking for six members of the Court, said:

The issue of K.B.’s testimonial capacity was raised at trial, and the trial judge held a voir dire to determine whether she could be allowed to testify. K.B. and Dr. K., the defense’s expert witness, were the only ones to testify during the voir dire on competence. The Crown’s examination of K.B. demonstrated that she understood the difference between telling the truth and lying in concrete situations. However, the trial judge went beyond this to question K.B. on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. K.B. was unable to respond adequately to these more abstract questions, to which she frequently answered “I don’t know” (A.R., vol. I, at pp. 117-19). Dr. K., a psychiatrist, testified for the defense. Dr. K’s opinion was formed without personal contact with K.B. It was based on school and medical records, as well as on K.B.’s behavior in her videotaped statement and during the voir dire. Dr. K. expressed the view that K.B. had “serious difficulty in differentiating the concept of truth and lie”, noted her low tolerance for frustration, and said, “I don’t think she had the ability to think what you’re asking and come up with an answer” (ibid., at pp. 159 and 161).

[snip,snip]

A second voir dire was held to decide on the Crown’s application for admitting K.B.’s out-of-court statements to the police and to her teacher, Ms. W. The teacher testified that K.B. would not intentionally lie, but that her ability to understand was more developed than her ability to express herself: “[t]his causes a lot of frustration for [K.B.], she frequently responds to questions by saying ‘I don’t know’” (ibid., at p. 176; see also pp. 184-85). Also, evidence was led corroborating K.B.’s allegations. A family friend testified that, while he was in D.A.I.’s room for another purpose, he found a Polaroid photo of K.B. with her breasts exposed and another photo of two unidentified people having sex. D.A.I.’s explanation of the first photo was that K.B. had flashed him while he was taking a photo of her. K.B.’s sister also testified that she had found such photos. However, she did not report it to her mother and the photos were not available at trial. K.B.’s sister also said she once saw D.A.I. touch K.B.’s breasts while she was lying on her bed.

The voir dire on hearsay admissibility was concluded by the trial judge’s dismissal of the Crown’s application. The trial judge rejected K.B.’s out-of-court statements to Ms. W. and to the police, holding that K.B.’s hearsay evidence was inadmissible because it was “unreliable, and its admission would seriously compromise the accused’s right to a fair trial” (2008 CarswellOnt 2638, at para. 57).

At trial, the judge concluded that while the remainder of the evidence raised “some serious suspicions” about D.A.I.’s conduct, it was too scant to support a conviction ((2008) CanLII 21725 (Ont. S.C.J.), at para. 11). The case essentially collapsed because of the trial judge’s ruling that K.B. was not competent to testify.

[snip, snip]

The first concept, and the one most relevant to this appeal, is the principle of competence to testify.  Competence addresses the question of whether a proposed witness has the capacity to provide evidence in a court of law.  The purpose of this principle is to exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court.  Competence is a threshold requirement. As a matter of course, witnesses are presumed to possess the basic “capacity” to testify. However, in the case of children or adults with mental disabilities, the party challenging the competence of a witness may be called on to show that there is an issue as to the capacity of the proposed witness. 

[snip, snip]

...I come to the provision at issue in this case, s. 16(3) of the Canada Evidence Act, which governs the capacity to testify of adults with mental disabilities. Section 16 provides:

16. (1) [Witness whose capacity is in question] If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

[Testimony under oath or solemn affirmation] A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

[Testimony on promise to tell truth] A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

[Inability to testify] A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

[Burden as to capacity of witness] A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

Section 16(1) sets out what a judge must do when a challenge is raised.  First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence”: s. 16(1). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do: s. 16(2). If these requirements are not met, the judge moves on to s. 16(3). Section 16(3) provides that “[a] person hellip; who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may hellip; testify on promising to tell the truth.”

Section 16(1) sets out what a judge must do when a challenge is raised.  First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence”: s. 16(1). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do: s. 16(2). If these requirements are not met, the judge moves on to s. 16(3). Section 16(3) provides that “[a] person hellip; who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may hellip; testify on promising to tell the truth."

In brief, s. 16(1) provides that an adult witness whose competence to testify is challenged should testify under oath or affirmation, if the witness “understands the nature of an oath or a solemn affirmation” and can “communicate the evidence”. Here K.B. did not meet the first requirement. The inquiry therefore moved to s. 16(3), which states that if an adult witness cannot take the oath or affirm under s. 16(1), then she must be permitted to testify if she is “able to communicate the evidence” and promises to tell the truth. 

On its face, s. 16 says that in a case such as this where the witness cannot take the oath or affirm, the judge has only one further issue to consider - whether the witness can communicate the evidence.  If the answer to that question is yes, the judge must then ask the witness whether she promises to tell the truth.  If she does, she is competent to testify.  It is not necessary to inquire into whether the witness understands the duty to tell the truth. 

The respondent argues, however, that the plain words of s. 16(3) do not suffice.  They must be supplemented, it says, by the requirement that an adult witness with mental disabilities who cannot take an oath or affirm must not only be able to communicate the evidence and promise to tell the truth, but must also understand the nature of a promise to tell the truth.

I cannot accept this submission. ... 

First, as already mentioned, this interpretation goes beyond the words used by Parliament. ... The first and cardinal principle of statutory interpretation is that one must look to the plain words of the provision.  Where ambiguity arises, it may be necessary to resort to external factors to resolve the ambiguity: .... However, Parliament has clearly stated the requirements for finding adult witnesses with mental disabilities to be competent. Section 16 shows no ambiguity. 

Second, the history of s. 16 supports the view that Parliament intended to remove barriers that had prevented adults with mental disabilities from testifying prior to the 1987 amendments. ...

Justice McLachlin goes on in this vein at some length. Along the way she states:

The common law, upon which our current rules of evidence are founded, recognized a variety of rules governing the capacity to testify in different circumstances.  The golden thread uniting these varying and different rules is the principle that the evidence must meet a minimal threshold or reliability as a condition of being heard by a judge or jury.  Generally speaking, this threshold of reliability is met by establishing that the witness has the capacity to understand and answer the questions put to her capacity, and by bringing home to the witness the need to tell the truth by securing an oath, affirmation or promise.  There is no guarantee that any witness - even those of normal intelligence who can take the oath or affirm - will in fact tell the truth, all the truth, or nothing but the truth.  What the trial process seeks is merely a basic indication of reliability.

The Chief Justice's opinion is certainly work(wo)manlike.


Justice Binnie, speaking for three dissenters, said:

I agree with the Chief Justice that, in this case, “[t]wo potentially conflicting policies are in play”, the first being to “bring to justice” those accused of sexual abuse and the second being “to ensure a fair trial for the accused and to prevent wrongful convictions” (para. 65). In my view, by turning Parliament’s direction permitting a person “whose mental capacity is challenged” to testify only “on promising to tell the truth” into an empty formality, a mere mouthing of the words “I promise” without any inquiry as to whether the promise has any significance to the potential witness the majority judgment unacceptably dilutes the protection Parliament intended to provide to accused persons.

Chief Justice McLachlin quoted portions of the Crown's and the trial judge's questioning of the alleged victim during voir dire:

During the voir dire on K.B.’s testimonial capacity, the Crown posed a line of questions going to whether she could tell the difference between true and false factual statements in concrete circumstances. These were relevant to K.B.’s basic ability to communicate the evidence:

MR. SEMENOFF:

How old are you now, [K.B.]?

A: I’m 22, you know that.

Q: 22? When’s your birthday?

A: [Birth date].

Q: [Birth date].

Are you going to school now or are you done with school?

A: I’m not done in school yet.

Q: What school do you go to, [K.B.]?

A: [Name of school].

Q: How long -- do you know how long you’ve been going to [name of

school]?

A: I don’t know.

Q: Did you go to any school before you went to [name of school]?

A: From [name of previous school].

Q: From [name of previous school]. Okay.

Did you have a teacher from that school, a [Ms. W.]?

A: Ms. [R.].

Q: Oh, [R.]. And I call her [Ms. W.], do you know what her name is, is it [R.] or is it [Ms. W.]?

A: [R.].

Q: Okay.

hellip; [K.B.], if I were to tell you that the room that we’re in that the walls in the room are black, would that be a truth or a lie, [K.B.]?

A: A lie.  

Q: Why would it be a lie?  

A: It’s different colours in here.  

Q: There are different colours in here. What colour are the walls?  

A: Purple.  

Q: Purple.

Okay. If I were to tell you that the gown that I’m wearing that that is black, would that be a truth or a lie?  

A: The truth.  

Q: And why is that?  

A: I don’t know.  

Q: You don’t know.

Is it a good thing or a bad thing to tell the truth?  

A: Good thing.  

Q: Is it a good thing or a bad thing to tell a lie?  

A: Bad thing.

(A.R., vol. I, at pp. 111-13)

However, the trial judge went on to question K.B. on her understanding of what the meaning of truth, religious concepts, and the consequences of lying.

THE COURT:

hellip;Do you go to church, [K.B.]?

A: No.  

Q: No. Have you ever been taught about God or anything like that?  

A: No.  

Q: No? All right.

What happens if you steal something?  

A: I don’t know.  

Q: You don’t know. If you steal something and no one sees it, will anything happen to you? Nothing will happen. Why won’t anything happen?  

A: I don’t know.  

Q: You don’t know.

Tell me what you think about the truth.  

A: I don’t know.  

Q: You don’t know. All right. Is it important to tell the truth?  

A: I don’t know.  

Q: You don’t know. Tell me what a promise is when you make a --

A: I don’t know.  

Q: -- promise. What’s a promise?  

A: I don’t know.  

Q: You don’t know what a promise is.

Okay. Have you ever been in court before?  

A: Once.  

Q: Once? And do you think it’s an important thing to be in court?  

A: I don’t know.  

Q: You don’t know. All right.

Do you know what an oath is, to take an oath?  

A: I don’t know.  

Q: No.

Do you have any idea what it means to tell the truth?  

A: I don’t know.  

Q: You don’t know.’

If you tell a lie does anything happen to you? Nothing happens.  

A: No.

hellip;

THE COURT:

. . . Do you know why you’re here today?

A: I don’t know. To talk about [D.A.I.].

Q: Yes, and do you think that’s really important?  

A: Maybe yeah.  

Q: Maybe yeah?

Remember earlier I was asking you about a promise?  

A: No.  

Q: Have you ever made a promise to anybody?  

A: I don’t know.  

Q: That you promised you’ll be good, did you ever say that? Have you ever heard that expression “I promise to be good, mommy”?  

A: Okay.  

Q: All right. So you know what a promise is, that you’re going to do something the right way? Do you understand that?  

A: Okay.  

Q: Can you tell me whether you understand that, [K.B.]?  

A: I don’t know.  

Q: Does anything happen if you break a promise?  

A: I don’t know.  

Q: You told me you don’t go to church, right?  

A: Right.  

Q: And no one has ever told you about God; is that correct? No one has ever told you about God?  

A: No.  

Q: Has anyone ever told you that if you tell big lies you’ll go to jail?  

A: Right.  

Q: If you tell big lies will you go to jail? 

A: No.

I don't think the Chief Justice liked it very much that the trial judge questioned the witness about her religious beliefs. But that's just my conjecture.






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Flash: Trial Judge Apparently Murdered Unauthenticated MySpace Page!

"[[T]trial judge] Bortner granted a motion to suppress concerning a page on the MySpace social networking site. There is no proof that defendant Jordan Wallick of York created or maintained the web page, which contains photos of  [murder defendant] Wallick, the judge said in a Friday ruling."

Source: Martha Neil,  Judge OKs Law Student's Dying Decalaration as Evidence, [b]ut Nixes MySpace Page Related to Defendant ABAJournal.com (Oct. 24, 2011).

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Charles Dickens' Jaundiced View of Lawyers

 "TUESDAY is the bicentenary of the birth, in Portsmouth, England, of Charles Dickens, literature’s greatest humanist. We can rejoice that so many of the evils he assailed with his beautiful, ferocious quill — dismal debtors’ prisons, barefoot urchin labor, an indifferent nobility — have happily been reformed into oblivion. But one form of wickedness he decried haunts us still, proud and unrepentant: the lawyer.

"Lawyers appear in 11 of his 15 novels. Some of them even resemble humans. Uriah Heep ('David Copperfield') is a red-eyed cadaver whose 'lank forefinger,' while he reads, makes 'clammy tracks along the page ... like a snail.' Mr. Vholes ('Bleak House'), 'so eager, so bloodless and gaunt,' is 'always looking at the client, as if he were making a lingering meal of him with his eyes.' Most lawyers infest dimly lighted, moldy offices 'like maggots in nuts.' ... "

Source:Joseph Tartakovsky, Dickens v. Lawyers (Op-Ed), NYTimes (Feb. 6, 2012).

I belong to a noble profession.

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