Truth and Justice vs. the Integrity of the Family Unit: Family Members' Testimonies from a Comparative and Normative Viewpoint

• Publication year: 2020

Truth and Justice vs. the Integrity of the Family Unit: Family Members' Testimonies from a Comparative and Normative Viewpoint

Dr. Guy Ben-David^*

Table of Contents

I. Introduction................................................................................389

II. Part One: The Regulation of Family Members' Testimony According to the "Competence Model" as Opposed to the "Privilege Model".......................................................................391

III. Part Two: Family Members' Testimony in Comparative Law-A Discursive and Normative Perspective..............................396

A. England.............................................................................396
B. United States of America...................................................397
C. Australia............................................................................400
D. Germany............................................................................402
E. Israel..................................................................................403

i. The Legal Status of Family Members' Testimony Before Amendment 16 to the Evidence Ordinance................404
ii. Family Members' Testimony After Amendment 16 to the Evidence Ordinance...................................................406

a. Spouses' Testimony..............................................406
b. Parents' and Children's Testimony.....................409

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c. Restrictions to the Exception— "Permitted Testimony" (Clause 5 of the Evidence Ordinance)...........................................................410

1. Offences Which Are Not Subject to the Exceptions (Restrictions to the Exceptions)........411
2. The Complainant's Testimony (Section 5(B) of the Evidence Ordinance).....................................415

F. Canada and New Zealand.................................................416

IV. Part Three: What is the Optimal Model for the Regulation of Family Members' Testimony?..............................................417

V. Conclusion...................................................................................422

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I. Introduction

One of the main goals of criminal procedure is to expose the factual truth.¹ Exposure of the truth is essential so that justice can be done in a criminal procedure,² because it enables the court to determine whether the defendant is guilty or innocent. It is in society's interest to convict guilty defendants and to acquit those who are innocent.³ The ability to convict guilty defendants and acquit the innocent depends on the court's ability to expose the factual truth.⁴ However, revealing the factual truth is not a supreme and absolute value. There are cases in which the desire to reach the truth succumbs to other important values worthy of protection; for example, exclusionary rules of evidence or privileges may be granted for relevant information. These rules are intended to protect important values such as privacy, the right to due process or free communication between a lawyer and their client, even at the cost of a potential harm to the fact-finding task (since they prevent the court from obtaining evidence) and the court's ability to do justice.

In order to protect the values of domestic harmony and the integrity of the family unit, many jurisdictions have been prompted to determine special rules restricting the testimony of spouses and/or parents and children in criminal proceedings. In some legal systems, including in Israel, the witness's competence to give evidence (for the prosecution) against a family member is annulled, while other systems, like the USA, Australia and Germany, grant these witnesses privilege that enables them to avoid testifying against their family member.⁵ The main purpose of these rules is to maintain the integrity of the family unit and to avoid compelling people, who are in the most natural close and trust-based relationship, to harm their family member.⁶ Additionally, when family members have an interest in the matter, putting them on the witness stand presents them with a difficult dilemma: having to choose between

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a duty of loyalty to the family member versus the duty of loyalty to the truth.⁷ The assumption is that when the prosecution is entitled to compel witnesses to give evidence against their family members, this harms domestic harmony and the stability of the family. Thus, these rules, which prevent the witnesses from giving incriminating testimony against their family members, protect these values, even at the cost of harm to the aims of criminal law.

As a rule, there are two main models for the regulation of family members' testimony in different legal systems. I shall call these models the competence model and the privilege model. Under the competence model, family members do not have the competence to testify on behalf of the prosecution in certain cases. In these cases, the prosecution is not entitled to summon a person on its behalf to testify against a family member. Such an arrangement in which a person is not competent to testify against a family member is an exception to the competence rule that developed in common law and that was adopted by modern law, under which every person has the competence to testify in any legal proceedings.⁸

The rationale underpinning the competence rule is to enable the court to receive information that is relevant to the case independent of the identity of the person giving the information.⁹ This helps the court in its work of revealing the truth and doing justice. When the family member's competence to testify for the prosecution is annulled, although the task of revealing the truth and doing justice is harmed, any possible harm to domestic harmony and the integrity of the family unit is avoided.¹⁰

The second model that developed in different legal systems is the privilege model. Under this model, the witness is granted the privilege to choose not to testify for the prosecution against their family member. In contrast to the competence model, a privilege does not annul a person's competence to testify against their family member, rather it gives them, as the holder of the

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privilege, the right to refuse to give testimony.¹¹ In the case where the witness refuses to testify against a family member, it is impossible to compel them to do so by imposing a sanction on them due to the refusal.¹² The holder of this privilege is also entitled to waive their privilege and testify against their relative. Thus, whether the law annuls family members' competence or grants them privilege, it prevents the court from receiving relevant evidence that might advance the search for the truth. This may increase the risk for judicial mistakes that will be expressed in the acquittal of guilty defendants, when the single or principal evidence is the recollection of a family member whose evidence is not heard in court. Since the goal of criminal procedure is to convict guilty defendants and to acquit the innocent, these regulations harm the ability of the prosecution and courts to convict guilty defendants.

The aim of this Article is to present a discursive, normative, and critical discussion on the two main general models that have developed in different jurisdictions. Part One of the Article discusses the competence model in comparison with the privilege model. In this chapter, I discuss the advantages and disadvantages of each of these models. Part Two consists of a comparative discussion, in which I examine different methods of regulation employed around the world for family members' testimony in criminal proceedings. The purpose of this chapter is to provide a comparative, descriptive view of this issue, which will explain the normative tension existing between the protection of the search for the truth and protection of the integrity of the family unit, and the balance between them in each of the above-mentioned legal systems.

In light of these discussions and the conclusions reached in the first two sections of the Article, in Part Three I attempt to answer the question: What is the optimal model to appropriately and justly create a balance between the two conflicting values—the search for the truth in opposition to the integrity of the family unit?

II. Part One: The Regulation of Family Members' Testimony According to the "Competence Model" as Opposed to the "Privilege Model"

The competence model annuls the witness's competence to testify against their family member. This model assumes that evidence given against the family member could disturb the integrity and the stability of the family unit. For this reason, spouses, and in some jurisdictions parents and children, should be prevented from testifying against one another, except in

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extraordinary cases. The advantage of the competence model is that it does not permit the prosecution to use an individual's testimony against their family member. In this manner, the model protects the integrity of the family unit from any possible harm that might be caused as a result of that person testifying against their spouse and/or child or parent.

However, in order to protect the family's unity, society must sacrifice other no less important values: truth and justice. The assumption is that if the competence of that individual-relative was not annulled, their evidence would assist the court in clarifying the truth while reducing the probability that the judge will make mistakes in fact-finding. The annulment of family members' competence harms public interest since it makes it difficult for the prosecution to bring guilty defendants to trial and to convict them in cases where the sole or main incriminating evidence against the defendant is that of their family member. While, as a rule, testimony that can benefit a family member is permitted—and may help their defense—evidence against the family member is forbidden, and its absence hinders the possibility of...