Guilty/Not Guilty

With two criminal defence lawyers in the family and my own background as a Justice as well as a crime writer, I suppose it's natural enough that I'm fascinated by the way the justice system works. I'm totally addicted to The Good Fight but would love someone to tell me if that really is the sort of thing that goes on in a US court? It certainly wasn't in the Perth and District Court when I was in charge!

My books are, basically, about who did it and who didn't – who's innocent and who's guilty. It's somewhere close, I suppose, to Oscar Wilde's Miss Prism's prototype: 'The good end happily, the bad unhappily. That is what fiction means.'

In a court, it's different. At the end of a trial the defendant is pronounced 'Guilty' or 'Not Guilty' but of course that isn't really true. All the court can say is that the case has been proved or not proved, according to the legal rules about evidence.

And I had an experience recently that got me thinking about what constitutes proof.

The strongest kind is of course hard evidence which can stand on its own – direct evidence like fingerprints and DNA where there isn't usually much point in arguing.

Then there's circumstantial evidence – evidence that links to hard evidence but is indirect, relying on inference which can be disputed. You hear people saying dismissively, 'Oh, it was purely circumstantial evidence', as if that meant it didn't count. But a high proportion of cases rely on a complex web of circumstantial evidence that ultimately builds to the proof standard of 'reasonable doubt' and it's often a great deal more reliable than the next category – the eye-witness account.

This is the kind of evidence juries instinctively love – 'he was there, he saw it.' The trouble is, even with the best will in the world (which doesn't always exist) people's memories are unreliable. Two peoples' accounts of same event may differ widely and the most complicated thing is that they often quite sincerely believe their own version.

A few years ago I had a horrid accident when I fell down ten concrete steps into a basement and landed on my face. I was amazingly lucky to escape permanent damage but I can still see it happening – when you think you're going to die it tends to make quite an impression. I could describe the staircase to you in minute detail – the handrail down one side which I grabbed at and missed, the bare wall on the other side, the wide steps where people sat as they tried to help me.

The trouble is, I'm wrong. I recently went back there for the first time since it happened and it's a narrow staircase with identical rails on either side with absolutely no room for anyone to sit beside a sprawling me. But I utterly believed my mental picture.

The unreliable narrator is a standard in detective fiction. But I don't think I've ever read one where the plot hinged on an unreliable but genuinely mistaken eye-witness – perhaps an idea to play with.