In cases where misleading transcripts are provided to the jury, it is common to assume some failure on the part of the defence, as if it is up to the defence to make sure evidence is reliable. This shows a misunderstanding not just of phonetic science but of the law.
The very different roles of prosecution and defence
In our legal system, prosecution and defence have very different roles and responsibilities.
Simply put, the prosecution acts on behalf of the community to present a fair case intended to persuade the jury of the defendant’s guilt.
The defence acts on behalf of the defendant. Their only role is to instil reasonable doubt about the prosecution’s case in the minds of the jury, and thus to obtain a verdict of Not Guilty.
Responsibility for the fairness of evidence
“A prosecutor is a ‘minister of justice’. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness.” NSW Prosecution Guidelines (similar guidelines govern prosecutors in other Australian jurisdictions)
Among many other effects, that gives the prosecution substantial responsibilities for ensuring the evidence they present is reliable.
This is seen clearly in some very strong general rules. The prosecution certainly can’t fabricate (make up) evidence and leave it up to the defence to demonstrate it is unreliable. They can’t even withhold evidence that doesn’t suit their case, and leave it up to the defence to find out about it.
For example, if the prosecution order a DNA test on a blood sample and the results show the blood is not the defendant’s, they still have to give the results to the defence. In a similar scenario, the defence can keep the results to themselves.
The upshot is that, in general, the court is entitled to expect that evidence provided by the prosecution is reliable, objective and fair. Of course defence must be on the look-out for unintentional errors, and for unjustified interpretations. But we don’t expect them to re-test every DNA sample, fingerprint or blood spatter pattern.
A relevant example
A highly relevant example is seen in the recent history regarding ‘verballing’ (where prosecution claims a defendant made admissions about a crime on the evidence of a police officer’s notes).
Following Royal Commission recommendations, legal practice changed so that evidence of admissions required reliable evidence in the form of a clear, independently transcribed recording.
The intention was to ensure that the defence, while exercising due diligence in checking details, can expect transcripts of police interviews to be generally accurate. It is interesting to note the steps that are required to ensure this.
What about covert recordings?
On the basis of common knowledge, it is easy to assume that a covert recording captures a speaker making admissions about a crime in the same way as a recorded police interview. To a very limited extent this is true in cases where the audio is clear and the circumstances of the recording are well documented.
However many covert recordings are anything but clear. It is in these cases that current law allows police transcripts to ‘assist’ the court in hearing what is said – after the transcripts have been checked by the defence.
That may seem fair on the basis of common knowledge – as it evidently did to the judges who made the rulings on which the law is based. However it fails to take account of very well established findings of phonetic science.
These findings show that it is impossible to ensure the reliability of a transcript of indistinct audio simply by ‘checking’. This site gives reasons and demonstrations to show how easy it is to be misled by a transcript even when you are looking for errors.
To those reasons and demonstrations I can add some personal anecdotes
On several occasions, where I have come into a case fairly late in proceedings, I have had defence barristers argue back in disbelief when I have suggested a police transcript of indistinct audio is inaccurate – even though it would have greatly helped their client’s case to accept my evidence.
In one case, both prosecution and defence had enlisted phonetics experts (me on one side, a highly-regarded colleague on the other). I and my colleague were both completely clear that the transcript was unreliable. Yet barristers on both sides (who of course had both been working for many months on the basis the transcript was accurate) were extremely sceptical, believing they had heard the words suggested by the transcript ‘with their own ears’.
At the time our current legal practice was developed, the law was unaware of the scientific evidence, already very well established even back then, that you can’t evaluate transcripts of indistinct audio simply by ‘checking’ (listening to the audio while reading and amending the transcript).
Now, however, that scientific evidence is widely available to all branches of law and law enforcement, and it is time for legal practice to be re-evaluated.
Principles of fairness and justice indicate it is the responsibility of the side using indistinct audio as evidence (usually but not always the prosecution) to ensure all recordings are accompanied by a demonstrably reliable transcript.
In the meantime, it is essential for defence teams to exercise extreme vigilance in evaluating transcripts of indistinct audio used as evidence.