Penny’s
trial also has a hidden agenda that is fascinating, even brilliant.
Unfortunately
Penny’s description of the trial could not have taken place in Canadian criminal
courts. I acknowledge every writer can adjust real life norms to fit their
fiction but it grates on me when trials are described that do not follow real
life procedures and rules of evidence. If such “details” are of little interest
to you read this post no further. If you have expectations of crime fiction
featuring trials to be “real” you will find this post of interest.
I
acknowledge it is hard to portray a trial if you have not been a trial lawyer.
The actual rules of conduct and evidence are complex. I found it difficult to
know whether Penny knew the rules but chose to disregard them.
Feelings
are not evidence. Evidence of feelings will rarely be allowed as the feelings
of a witness are not facts but the opinions of the witness.
In
one exchange:
“How did it
strike you,” the Crown asked, “when you saw Lea Roux come to the defense of the
cobrador?”
“I would’ve been
surprised to see anyone standing between a man swinging a fireplace poker and
his target.”
A
judge would not want Gamache’s opinion on the actions of Ms. Roux. The judge
would want the narrative of what happened.
At
another point the prosecutor asks:
“What tips someone over into murder?”
The
question allows Gamache to give a lecture on his theory of murder:
“What makes
someone kill isn’t opportunity, it’s emotion,” Gamache spoke quietly, softly
even. As though confiding in a good friend. “One human kills another.
Sometimes it’s a flash of uncontrollable anger,. Sometimes it’s cold. Planned.
Meticulous. But what they have in common is an emotion out of control. Often
something that has been pent up. Buried. Clawed away at the person.”
When
the prosecutor objects that Gamache’s statement is irrelevant the judge denies
the objection as Gamache is the Crown’s witness and the prosecutor had asked
the question.
As
I read the passage I was saying no in my mind. Even without objection from the
defence no judge would have allowed the question let alone the answer. Once
again it is not evidence but opinion.
The
prosecutor could in his address to jury set out an argument on how the evidence
supports a theory of murder but no witness would be allowed such a speech.
Later
the prosecutor invites Gamache to speculate on knowledge there was murder:
“When you
arrived at the restaurant, Chief Superintendent, did you get the impression the
people already knew?”
It
is not for Gamache to provide his opinion on what they “already knew”. If the
prosecutor wants to “know” what they “knew” he needs to call the people at the
restaurant as witnesses.
Procedurally
the trial judge would never invite the prosecutor and witness, Gamache, into
her Chambers without including defence counsel and the accused.
Only
in the most exceptional circumstances will the accused not be present when a
trial matter is being discussed. Not long ago in Saskatchewan a new trial was
ordered when the accused was not included in a conference involving judge and
legal counsel.
As
a final example no author should ever have a Canadian judge wielding a gavel.
There are no gavels in Canadian courts.
Penny, Louise – (2005) - Still Life; (2006) - Dead Cold (Tied for 3rd Best fiction of 2006); (2007) - The Cruelest Month; (2009) - The Murder Stone (Tied for 4th Best fiction of 2009); (2010) - The Brutal Telling; (2011) - Bury Your Dead (Best Fiction of 2011); (2011) - A Trick of the Light; (2012) - The Beautiful Mystery (Part I) and The Beautiful Mystery (Part II); (2013) - "P" is for Louise Penny - Movie Producer and Review of the Movie of Still Life; (2013) - How the Light Gets In; (2014) - The Long Way Home; (2014) - The Armand Gamache Series after 10 Mysteries - Part I and Part II; (2015) - The Nature of the Beast (Part I) and The Nature of the Beast (Part II); (2016) - A Great Reckoning - The Academy and Comparisons and The Map; (2017) - Glass Houses - Happiness and Unhappiness
****
What an interesting post, Bill. And I can see how it would grate on you when a fictional courtroom sequence doesn't follow those rules about what can and can't be admissible in court. It makes sense, too, that feelings, opinions, and so on wouldn't count as evidence. If I were an attorney, that would probably grate on me, too, as I like to keep my disbelief with me when I read.
ReplyDeleteMargot: Thanks for the comment. I believe authors can create just as much drama while getting the law right.
DeleteGood to read this. I'm from the USA, and would have thought I was learning something about Canadian courts. Thanks for the clarification.
ReplyDeleteAbbie: Thanks for the comment. There are differences between Canadian and American trials - a topic for another post.
DeleteOh dear, this is getting worse. I often think that you should offer yourself as law consultant to crime writers...
ReplyDeleteMoira: Thanks for the comment. I would be willing to help. I have been consulted once. After receiving my answer the author changed the plot line.
Delete