The Silent Story: The Voice of the Accused

Post #258

1100 words; 5 minutes to read

By Hannah Lee, law student, linkedin.com/in/hannah-jd-candidate

Summary: Accused persons seldom speak in the justice system, leaving us ignorant of the social and life circumstances that often play a major role in criminal behaviour.

Audio summary by volunteer Kimberly Duong.

While the right to remain silent is a cornerstone of our criminal justice system, the flip side of this right is equally significant. The accused has the right to testify in their own defence. This allows defendants to present their version of events, clarify misunderstandings, and directly address allegations against them.  Despite this right, in reality the voice of the accused is often unheard.

An interesting perspective on this issue is in a new paper by legal scholar Steven Zeidman, who proposes more focus on the voice of the accused, especially by considering the profound impact of social background on their actions.

Roots of Crime: Impact of Adverse Social Backgrounds

Many, many people accused of crimes have a history marked by serious life challenges.  This often includes factors such as unstable housing, chronic lack of employment, inadequate education, poor access to healthcare, and in many instances, racism, discrimination or mental health challenges. Zeidman refers to this as a “rotten social background,” an upbringing defined not by individual failings, but by a systemic neglect and societal inequities.  In such cases, criminal behaviour is not just a result of a personal choice but involves a complex interplay of circumstances that set the stage for involvement in crime.

Research shows that individuals who grow up in environments of extreme deprivation often face a range of psychological, emotional, and cognitive challenges. These can include difficulty forming stable relationships, problems with impulse control, and heightened susceptibility to external pressures, such as peer influence or substance abuse. Yet in the current criminal justice system, these factors are often overlooked when determining guilt.  The vast majority of cases do not involve a trial, and even when they do, the accused rarely testifies, so their stories and struggles tend to be buried beneath the legal process.

Should the criminal justice system place the full weight of guilt on these individuals, or should we broaden our approach to acknowledge the systemic failures that contributed to their criminal behaviour?  Rethinking guilt through a more compassionate lens asks us to consider whether we are judging the individual, or the societal conditions that paved the way for their actions. By acknowledging the systemic roots of crime, we can begin to explore alternative approaches that emphasize prevention, rehabilitation and reintegration over punishment.

There are some specific situations in which such factors may be considered in our current system.  Gladue reports for Indigenous people are supposed to address social background but often fail to do so properly.  The law has a specific option for people to plead not criminally responsible on account of mental disorder.  The plea of self-defence also involves the consideration of factors beyond the specific crime in question.  However, these are exceptions.

Why Stories of the Accused are Left Untold

Accused persons rarely avail themselves of the right to testify on their own behalf.  This is the case not only at trial, if there is one, but also at sentencing hearings.  Accused persons, especially from marginalized backgrounds, are often advised by their lawyers against testifying due to the risks of aggressive cross-examination, the fear of not being believed, or the societal stigma that paints them as guilty. As a result, these individuals are deprived of the chance to humanize their situation and explain how social conditions may have shaped their actions. This denies the court the opportunity to consider the full context of their actions, which could lead to fairer and better-informed outcomes.

This silence extends beyond the trial and sentencing phases, continuing into parole hearings. Parole boards often focus primarily on the individual’s behavior within the institution, such as adherence to rules, rather than considering the social factors that contributed to their incarceration in the first place. This approach overlooks the root causes of the individual’s behavior, reducing their life experiences and social context to mere compliance within a controlled environment.

At the same time, courts and parole boards have given increasing prominence to victim impact statements, which typically propose or are used to justify harsher punishments.

Ideas for Greater Fairness

Zeidman proposes several steps that could be taken to ensure the voice of the accused is heard and that the societal context surrounding their criminal behavior is acknowledged.

Admit Evidence of the Accused’s Background During the Question of Culpability

One crucial change could be to allow evidence of the accused’s social background to be considered at the stage of culpability, rather than limiting it to the sentencing phase, so judges and juries could better understand the full scope of the accused’s life. While mitigating factors like social background are often discussed during sentencing, they are not typically factored into the decision of guilty or not guilty. This creates a disjointed process in which the accused’s personal history is seen as secondary to their actions, despite the strong correlation between socioeconomic factors and criminal behavior.

Consider the Impact of Sentences on the Defendant’s Family

Another suggestion is to consider the effects of the sentence on the defendant’s family. Family members of the defendant can suffer from a crime in much the same way as victims and their families.  Incarceration, even on remand, disrupts not just their own lives, but to the lives of their loved ones and often places children, spouses, or parents in vulnerable positions.  Yet there is presently little opportunity for these effects to be considered.

Acknowledging these factors could provide a more holistic view of the situation, prompting judges to consider alternatives to lengthy prison terms, such as restorative justice.

Consider the costs of expert opinion

Accused persons may enter information about social context at sentencing through expert opinions, but this can be an expensive undertaking and most accused already have great difficulty meeting their legal costs.  Courts could do more to request such information prior to sentencing.

Integrate Background Information into Parole Hearings

The same considerations could and should apply to parole hearings.  By considering the accused’s “rotten social background”, parole boards could make more informed decisions. This could lead to earlier release for individuals who have demonstrated growth but who were, in part, victims of societal neglect.

Conclusion

The criminal justice system is often quick to pass judgment on individuals, focusing on their actions rather than the circumstances that led them to those actions. Paying more attention to the voice of the accused and considering their background and the societal forces that shaped their behaviour, could create a more empathetic and nuanced system of justice.

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