He should be told by the police that he is being taken direct to the
magistrate who will try the case, who will hear anything accused has to
say. He should be warned to say nothing to the police. Then he should
be taken direct to the magistrate, who should explain to him fully what
he is accused of and ask him what he has to say.
Whatever his statement be, the magistrate should tell him that he will
himself at once investigate it and summon witnesses; meanwhile the
accused should be remitted to custody, but _not_ to police custody.
That is where all the trouble comes in and all opportunities for making
charges against the police. If there be no gaol there should be a
lock-up in charge of Indian police who are under the magistrate and are
not concerned in the guilt or otherwise of the accused. The
investigating police should only have access to accused by permission
of the magistrate. He should, however, be allowed to see his friends
and a pleader if he wish. But I am sure of this, that the first
offender would rather trust the magistrate, if he were a personality
who he knew would help him, than any pleader.
Further, if a man confess truly, his punishment should be greatly
reduced. I do not say this should be done because he gives less
trouble, but because the frame of mind induced by a free and full
confession is a sounder frame of mind on which to begin reformation
than are defiance and negation, which are now inculcated by our system.
The trial need not wait till the case is complete. The magistrate
could summon the police witnesses at once, and he should examine them
himself, allowing only the police to suggest questions if they wish.
Similarly, with the defence witnesses, they could be examined as they
came in and should be examined by the magistrate himself. No one but
the magistrate should be allowed to speak directly to any party to the
case.
All cross-examination should be absolutely prohibited. If either side
have matters they wish brought out of a witness, they should tell the
magistrate and he would ask such questions as he thought fit. There is
no such curse now to justice as cross-examination by a clever pleader
or barrister. It is a sort of forensic show-off by the advocate at the
cost of the witness, and frequently at the cost of justice. For,
naturally, no one cares to be bullied by a licensed bully, and
witnesses consequently will not come to Court if they can help it.
When in Court they are bamboozled and made to contradict themselves
where they have originally spoken the truth.
I have often been told that acute cross-examination by a clever
barrister is the greatest safeguard justice can have from false
evidence. I don't believe a word of it. A magistrate can by far fewer
and simpler questions expose false evidence better than an advocate
does, because the magistrate is intent only on his business--to find
the truth; the advocate is advertising himself, and trying to destroy
truth as well as falsehood.
Public-domain text, read in full here on John Shaqi.
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