Attorney challenges proposal by Chief Justice to end unsworn statements

By Nakinskie Robinson   

 

Attorney Hugh Small has come out against a call by Chief Justice Brian Sykes for unsworn statements to be removed from the trial process.

 

Justice Sykes questioned the rationale for being unable to test the credibility of a statement given by a defendant if a criminal trial is focused on truth.

 

But Mr. Small contends that the Chief Justice should be cautious when making such a pronouncement publicly, especially in light of the potential impact.   

 

The proposal, he said, would have constitutional implications in terms of freedom of expression and the presumption of innocence.

 

"Even with a warning from the judge, to the jury or the judge warning himself that he should not take a prejudicial position against a person who makes an unsworn statement, there's always the question in the minds of a trial of fact, why was this person afraid of being questioned on his evidence? And how do I balance that person's evidence as I balance the evidence of someone who's sworn statement has been subject to cross-examination?" Mr. Small contended. 

 

He further argued that if the idea were to be legislated, the Chief Justice would need to make a constitutional appraisal.

 

During the trial process, a defendant can choose to be cross-examined or make an unsworn statement, the latter being the most common selection.

 

An unsworn statement is made by an accused person, setting out the accused's version of the facts, but it is not under oath and therefore not subject to cross-examination.

 

Meanwhile, attorney Clive Munroe Jr. says unsworn statements remain a point of contention across the legal fraternity. 

 

"There are some practical implications to that, including the right to a fair hearing. I think there has been a source of tension between different aspects of the trial systems, call it that, as to the efficacy of the unsworn statements and their place in what we can losely call fair proceedings. I don't think this issue is going to go away, but it's now on the table for discussion, so we'll see how it develops from there," he reasoned.  

 

Both attorneys were guests Sunday on Radio Jamaica's That's a Rap.