LITERARY LEGAL QUOTATIONS — PART 2

WILLIAM FAULKNER.

 

. . . too many of us not because of the room we take up but because we are willing to sell liberty short at any tawdry price for the sake of what we call our own which is a constitutional statutory licence to pursue each his private postulate of happiness and contentment regardless of grief and cost even to the crucifixion of someone whose nose or pigment we don’t like  and even these can be coped with provided that few of others who believe that a human lie is valuable simply because it has a right to keep o breathing no matter what pigment its lungs distend or nose inhales the air and are willing to defend that right at any price . . .  

─ Intruder in the Dust

 

. . . since what sets a man writhing sleepless in bad at night is not having injured his fellow so much as having been wrong; the mere injury (if he cannot justify it with what he calls logic) he can efface by destroying the victim and the witnesses but the mistake is his and that is one of the cats which he always prefers to choke to death with butter. 

─ Intruder in the Dust 

Thou shalt not kill you see – no accusative, heartless: a simple moral precept; we have accepted it in the distant anonymity of our forefathers, had it so long cherished it, fed it, kept the sound of it alive and the very words themselves unchanged, handled it so long that all the corners are now worn smoothly off; we can sleep right in the bed with it; we have even distilled our own antidotes for it as the foresighted housewife keeps  a solution if mustard or handy eggwhites on the same shelf with the rat poison; as familiar as grandpa’s face, as unrecognizable as grandpa’s face beneath the turban of an Indian prince, as abstract as grandpa’s flatulence at the family supper-table; even when it breaks down and the spilled blood stands sharp and glaring in our faces we still have the percept, still intact, still true: we shall not kill and maybe next time we even wont. But thou shalt not kill thy mother’s child. It came right down into the street that time to walk in broad daylight at your elbow, didn’t it?’

 ─ Intruder in the Dust

 

 . . murderers are gamblers and like the amateur gambler the amateur murderer believes first not in his luck but in long shots, that the long shot will win simply because it’s a long shot . . .

 ─ Intruder in the Dust

 

Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonour and shame. No matter how young you are or how old you have got. Not for kudos and not for cash: your picture in the paper nor money in the bank either. Just refuse to bear them. (p. 733) 

─ Intruder in the Dust 

 

Sitting around in a lawyer’s office until twelve o’ clock at night is no place for a lady.

 ─ Intruder in the Dust

 

 . . one shame if shame must be, one expiation since expiation must surely be but above all one unalterable durable impregnable one: one people one heart one land: . . .

 ─ Intruder in the Dust

 

. . . how of all human pursuits murder has the most deadly need of privacy; how man will go to almost any lengths to preserve the solitude in which he evacuates or makes love but he will go to any length for that in which he takes life, even to homicide, yet by no act can he more completely and irrevocably destroy it:

 ─ Intruder in the Dust

 

It was of brick, square, proportioned, with four brick columns in shallow basrelief  across the front and even brick cornice under the eaves because it was old, but built in a time when people took time to build even jails with grace and care and he remembered how his uncle had said once that not courthouses nor even churches  but jails were the true records of a country’s, a community’s, history, since not only the cryptic forgotten initials and words and even phrases cries of defiance and indictment scathed into the walls but the very bricks and stones themselves held, not in solution but in suspension, intact and biding and potent and indestructible, the agonies and shames and grieves with which hearts long since unmarked and unremembered dust had strained  and perhaps burst.

 ─ Intruder in the Dust

 

But the lawyer should know all the facts, everything. He is the one to decide what to tell and what not to tell. Else, why have one? That’s like paying a dentist to fix your teeth and then refusing to let him look into your mouth, don’t you see? You wouldn’t treat a dentist or a doctor this way.’

─ Sanctuary

 

When a man swaps horse for horse, that’s one thing and let the devil protect him if the devil can. But when cash money starts changing hands, that’s something else. And for a stranger to come in and start that cash money to changing and jumping from one fellow to another, it’s like when a burglar breaks into your house and flings your things ever which way even if he dont take nothing. It makes you twice as mad.

 — The Hamlet

 

f a fellow’s got to choose between a man that is a murderer and one he just thinks maybe is, he’ll choose the murderer. At least then he will know exactly where he’s at. His attention aint going to wander then.

 

— The Hamlet

US SUPREME COURT OBAMA-CARE JUDGMENT

“What the Court did not do on its last day in session, I will do on my first day if elected President of the United States, and that is I will act to repeal Obama-care." — Mitt Romney 

National Federation of Independent Business et al. v Sebelius, Secretary of Health and Human Services et al.

 Judgment, Chief Justice Roberts — June 28, 2012

(EXCERPTS)

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

“Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803).”

“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

VALUES, VALUE JUDGMENTS AND FACTS—PART 1

‘What is `fair' in a particular set of circumstances is something upon which a group of high-minded philosophers, let alone an assembly of Judges, may fail to agree.’

— S v Ngwenya & Others 1998 (2) SACR 503 (W) at 506j-507a per Leveson J

 

The Power of Ideas — Sir Isaiah Berlin

    I do not know who else may have thought this, but it occurred to me that some ultimate values are compatible with each other and some are not. Liberty, in whichever sense, is an eternal human ideal, whether individual or social. So is equality. But perfect liberty (as it must be in the perfect world) is not compatible with perfect equality. If man is free to do anything he chooses, then the strong will crush the weak, the wolves will eat the sheep, and this puts an end to equality. If perfect equality is to be attained, then men must be prevented from outdistancing each other, whether in material or in intellectual or in spiritual achievement, otherwise inequalities will result. The anarchist Bakunin, who believed in equality above all, thought that universities should be abolished because they bred learned men who behaved as if they were superior to the unlearned, and this propped up social inequalities. Similarly, a world of perfect justice—and who can deny that this is one of the noblest of human values?—is not compatible with perfect mercy. I need not labour this point: either the law takes its toll, or men forgive, but the two values cannot both be realised.

    Again, knowledge and happiness may or may not be compatible. Rationalist thinkers have supposed that knowledge always liberates, that it saves men from being victims of forces they cannot understand; to some degree this is no doubt true, but if I know that I have cancer I am not thereby made happier, or freer—I must choose between always knowing as much as I can and accepting that there are situations where ignorance may be bliss. Nothing is more attractive than spontaneous creativity, natural vitality, a free flowering of ideas, works of art—but these are not often compatible with a capacity for careful and effective planning, without which no even moderately secure society can be created. Liberty and equality, spontaneity and security, happiness and knowledge, mercy and justice—all these are ultimate human values, sought for themselves alone; yet when they are incompatible, they cannot all be attained, choices must be made, sometimes tragic losses accepted in the pursuit of some preferred ultimate end. But if, as I believe, this is not merely empirically but conceptually true—that is, derives from the very conception of these values—then the very idea of the perfect world in which all good things are realised is incomprehensible, is in fact conceptually incoherent. And if this is so, and I cannot see how it could be otherwise, then the very notion of the ideal world, for which no sacrifice can be too great, vanishes from view.

 

The Power of Ideas — Sir Isaiah Berlin

    Physics and chemistry did not tell one why some men were obliged to obey other men and under what circumstances, and what was the nature of such obligations; what was good and what was evil; whether happiness and knowledge, justice and mercy, liberty and equality, efficiency and individual independence, were equally valid goals of human action, and, if so, whether they were compatible with one another, and if not, which of them were to be chosen, and what were valid criteria for such choices, and how we could be certain about their validity, and what was meant by the notion of validity itself; and many more questions of this type.

    Yet—so a good many eighteenth-century philosophers argued—a similar state of chaos and doubt had once prevailed in the realm of the natural sciences too; yet there human genius had finally prevailed and created order.

Nature, and Nature's laws lay hid in night. God said, Let Newton be! and all was light.'

    If Newton could, with a small number of basic laws, enable us, at least in theory, to determine the position and motion of every physical entity in the universe, and in this way abolish at one blow a vast, shapeless mass of conflicting, obscure and only half­ intelligible rules of thumb which had hitherto passed for natural knowledge, was it not reasonable to expect that, by applying similar principles to human conduct and the analysis of the nature of man, we should be able to obtain similar clarification and establish the human sciences upon equally firm foundations?

    Philosophy fed on the muddles and obscurities of language; if these were cleared away, it would surely be found that the only questions left would be concerned with testable human beliefs, or expressions of identifiable, everyday human needs or hopes or fears or interests. These were the proper study of psychologists, anthropologists, sociologists, economists; all that was needed was a Newton, or series of Newtons, for the sciences of man; in this way the perplexities of metaphysics could once and for all be removed, the idle tribe of philosophical speculators eradicated and, on the ground thus cleared, a clear and firm edifice of natural science built.

    This was the hope of all the best-known philosophers of the, Enlightenment, from Hobbes and Hume to Helvetius, Holbach, Condorcet, Bentham, Saint-Simon, Comte, and their successors. Yet this programme was doomed to failure. The realm of philosophy was not partitioned into a series of scientific successor states. Philosophical questions continued (and continue) to fascinate and torment enquiring minds.

    Why is this so? An illuminating answer to this problem was given by Kant, the first thinker to draw a clear distinction between, on the one hand, questions of fact, and, on the other, questions about the patterns in which these facts presented themselves to us ­ patterns that were not themselves altered however much the facts themselves, or our knowledge of them, might alter. These patterns or categories or forms of experience were themselves not the subject-matter of any possible natural science.

    Kant was the first to draw the crucial distinction between facts —­ the data of experience, as it were, the things, persons, events, qualities, relations that we observed or inferred or thought about—and the categories in terms of which we sensed and imagined and reflected about them. These were, for him, independent of the different cosmic attitudes—the religious or metaphysical frame­works that belonged to various ages and civilisations. Thus the majority of Greek philosophers, and most of all Aristotle, thought that all things had purposes built into them by nature—ends or goals which they could not but seek to fulfil. The medieval Christians saw the world as a hierarchy in which every object and person was called upon to fulfil a specific function by the Divine Creator; he alone understood the purpose of the entire pattern, and made the happiness and misery of his creatures depend upon the degree to which they followed the commandments that were entailed by the differing purposes for which each entity had been created—the purposes that in fulfilling themselves realised the universal harmony, the supreme pattern, the totality of which was kept from the creatures, and understood by the Creator alone.

    The rationalists of the eighteenth and nineteenth centuries saw no purpose in anything but what man himself had created to serve his own needs, and regarded all else as determined by the laws of cause and effect, so that most things pursued no purposes, but were as they were, and moved and changed as they did, as a matter of 'brute' fact.

    These were profoundly different outlooks. Yet those who held them saw very similar items in the universe, similar colours, tastes, shapes, forms of motion and rest, experienced similar feelings, pursued similar goals, acted in similar fashions.

    Kant, in his doctrine of our knowledge of the external world, taught that the categories through which we saw it were identical for all sentient beings, permanent and unalterable; indeed this is what made our world one, and communication possible. But some of those who thought about history, morals, aesthetics, did see change and differences; what differed was not so much the empirical content of what these successive civilisations saw or heard or thought as the basic patterns in which they perceived them, the models in terms of which they conceived them, the category-spectacles through which they viewed them.

    The world of a man who believes that God created him for a specific purpose, that he has an immortal soul, that there is an afterlife in which his sins will be visited upon him, is radically different from the world of a man who believes in none of these things; and the reasons for action, the moral codes, the political beliefs, the tastes, the personal relationships of the former will deeply and systematically differ from those of the latter.

    Men's views of one another will differ profoundly as a very consequence of their general conception of the world: the notions of cause and purpose, good and evil, freedom and slavery, things and persons, rights, duties, laws, justice, truth, falsehood, to take some central ideas completely at random, depend directly upon the general framework within which they form, as it were, nodal points. Although the facts which are classified and arranged under these notions are not at all identical for all men at all times, yet these differences—which the sciences examine—are not the same as the profounder differences which wearing different sets of spectacles, using different categories, thinking in terms of different models, must make to men of different times and places and cultures and outlooks.

    Philosophy, then, is not an empirical study: not the critical examination of what exists or has existed or will exist—this is dealt with by common-sense knowledge and belief, and the methods of the natural sciences. Nor is it a kind of formal deduction, as mathematics or logic is. Its subject-matter is to a large degree not the items of experience, but the ways in which they are viewed, the permanent or semi-permanent categories in terms of which experience is conceived and classified. Purpose versus mechanical causality; organism versus mere amalgams; systems versus mere togetherness; spatiotemporal order versus timeless being; duty versus appetite; value versus fact—these are categories, models, spectacles. Some of these are as old as human experience itself; others are more transient. With the more transient, the philosopher's problems take on a more dynamic and historical aspect. Different models and frameworks, with their attendant obscurities and difficulties, arise at different times. The case of contemporary problems in the explanatory framework of physics, already mentioned, is one example of this. But there are other examples, which affect the thought not just of physicists or other specialists, but of reflective men in general.

    In politics, for example, men tried to conceive of their social existence by analogy with various models: Plato at one stage, perhaps following Pythagoras, tried to frame his system of human nature, its attributes and goals, following a geometrical pattern, since he thought it would explain all there was. There followed the biological pattern of Aristotle; the many Christian images with which the writings of the Fathers as well as the Old and New Testaments abound; the analogy of the family, which casts light upon human relations not provided by a mechanical model (say that of Hobbes); the notion of an army on the march with its emphasis on such virtues as loyalty, dedication, obedience, needed to overtake and crush the enemy (with which so much play was made in the Soviet Union); the notion of the State as a traffic policeman and night-watchman preventing collisions and looking after property, which is at the back of much individualist and liberal thought; the notion of the State as much more than this—as a great co-operative endeavour of individuals seeking to fulfil a common end, and therefore as entitled to enter into every nook and cranny of human experience, that animates much of the 'organic' thought of the nineteenth century; the systems borrowed from psychology, or from theories of games, that are in vogue at present—all these are models in terms of which human beings, groups and societies and cultures, have conceived of their expenence.

    These models often collide; some are rendered inadequate by failing to account for too many aspects of experience, and are in their turn replaced by other models which emphasise what these last have omitted, but in their turn may obscure what the others have rendered clear. The task of philosophy, often a difficult and painful one, is to extricate and bring to light the hidden categories and models in terms of which human beings think (that is, their use of words, images and other symbols), to reveal what is obscure or contradictory in them, to discern the conflicts between them that prevent the construction of more adequate ways of organising and describing and explaining experience (for all description as well as explanation involves some model in terms of which the describing and explaining is done); and then, at a still 'higher' level, to examine the nature of this activity itself (epistemology, philosophical logic, linguistic analysis), and to bring to light the concealed models that operate in this second-order, philosophical, activity itself.

    If it is objected that all this seems very abstract and remote from daily experience, something too little concerned with the central interests, the happiness and unhappiness and ultimate fate, of ordinary men, the answer is that this charge is false. Men cannot live without seeking to describe and explain the universe to themselves. The models they use in doing this must deeply affect their lives, not least when they are unconscious; much of the misery and frustration of men is due to the mechanical or unconscious, as, well as deliberate, application of models where they do not work. Who can say how much suffering has been caused by the exuberant use of the organic model in politics, or the comparison of the State to a work of art, and the representation of the dictator as the inspired moulder of human lives, by totalitarian theorists in our own times? Who shall say how much harm and how much good, in previous ages, came of the exaggerated application to social relations of metaphors and models fashioned after the patterns of paternal authority, especially to the relations of rulers of States to their subjects, or of priests to the laity?

    If there is to be any hope of a rational order on earth, or of a just appreciation of the many various interests that divide diverse groups of human beings—knowledge that is indispensable to any attempt to assess their effects, and the patterns of their interplay and its consequences, in order to find viable compromises through which men may continue to live and satisfy their desires without thereby crushing the equally central desires and needs of others—it lies in the bringing to light of these models, social, moral, political, and above all the underlying metaphysical patterns in which they are rooted, with a view to examining whether they are adequate to their task.

    The perennial task of philosophers is to examine whatever seems insusceptible to the methods of the sciences or everyday observation, for example, categories, concepts, models, ways of thinking or acting, and particularly ways in which they clash with one another, with a view to constructing other, less internally contradictory and (though this can never be fully attained) less pervertible metaphors, images, symbols and systems of categories. It is certainly a reasonable hypothesis that one of the principle causes of confusion, misery and fear is, whatever may be its psychological or social roots, blind adherence to outworn notions, pathological suspicion of any form of critical self-examination, frantic efforts to prevent any degree of rational analysis of what we live by and for.

    This socially dangerous, intellectually difficult, often agonising and thankless but always important activity is the work of philosophers, whether they deal with the natural sciences or moral or political or purely personal issues. The goal of philosophy is always the same, to assist men to understand themselves and thus operate in the open, and not wildly, in the dark.

MURDER―WHATDO YOU MEAN ? IT’S HARDLY A TRAIN SMASH!

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass―an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.”

―Charles Dickens, “Oliver Twist”, Chapter 51

First allow me these three preliminary fictitious examples before bringing it all back home:

EXAMPLE 1

Suppose a seasoned pilot, given his expertise, can execute highly complex and life-threatening mid-air manoeuvres in any which way possible. He would often, and against regulations, take passengers aboard on some of his aforementioned exploits; each and every time succeeding in executing these escapades with textbook aplomb. One day the plane crashed. Ten of his fourteen passengers died and the other four were injured seriously. Our pilot himself had also been seriously injured and spent five days in hospital, escaping death by a narrow margin.  He is charged with ten counts of murder in respect of the deceased and four of the attempt thereof in respect of the injured. The prosecution knew that proving murder with direct intent would be out of the question (perhaps understandably so). Instead they relied on murder with legal intent (dolus eventuaslis). What had to be proved therefore was that the accused: (i) subjectively foresaw the possibility of the deaths ensuing from his conduct; and (ii) reconciled himself with that possibility.

The Judge found that requirement (i) had been proved―so far, so good. However, the court found in favour of the accused regarding requirement (ii). Thus spoke the Judge: “The accused is not guilty of the ten murders in that he had not, for the following reasons, reconciled himself with the possibility of these deaths ensuing:

 

·       the accused is a qualified and seasoned pilot;

·       he had each and every time before  successfully indulged similar quixotic exploits with or without passengers on board;

·       therefore, this time around he also subjectively entertained the possibility that he would succeed;

·       this subjective believe having thus been established, entailed that he had not reconciled himself with the possibility of these deaths ensuing;

·       furthermore, this accused himself suffered serious injuries;

·       if it were held that he had reconciled himself with the possibility of these deaths, it would mean that he must also have reconciled himself with the consequence of his own;

·       and such possibility could hardly be imputed to him.

[The Judge thereupon, for reasons I need not entertain here, convicted on ten counts of culpable homicide and acquitted on all four attempts thereof]

 

EXAMPLE 2

 

1.     A gunman inserts one round in a revolver, spins the cylinder, and puts the barrel against the head of a willing participant. However, he also places the back of his own hand flat against the participant’s head. This is ostensibly his guarantee to the participant whom he thereby purports to assure that he is absolutely subjectively convinced that the gun will not discharge.; in the unlikely event of this, the bullet would then have to hit his own hand also; this the participant could rest assured the gunman would not risk. Then he would pull the trigger and the gun does not fire.  This happens umpteenth times. However, one day he pulled a trigger too many, blowing away his participant‘s head. He himself is admitted to hospital, stays there for five days, almost having died of loss of blood.

 

He is acquitted of murder for the very reason that he had been dabbling in his version of Russian roulette on many a successful occasion, that every time when he had pulled the trigger, no bullet had ever been discharged. He could therefore not now suddenly be adjudged to have subjectively reconciled himself with the possibility that his game of chance would literally back fire

 

Furthermore, had not he himself almost died in his own adventure? This being the case, how could it possibly be held that the accused could ever have reconciled himself with the deceased’s dying without absurdly first contemplating that he had reconciled himself with his own demise?

 

 

EXAMPLE 3

 

Counsel for a serial rapist, now charged with murder upon the death of one of his victims, argues as follows:

 

“M’Lord, my client is used to sexually violating his victims. He’d done it many, a many time. His trademark, over and above the sexual assaults had been to scar each victim by methodically slashing their faces with a sharp knife. M’Lord as the forensic psychologist testified, it’s in the very nature of his sadistic endeavours that he must abide by this procedure, he relishes in this, he prides himself on this, these knife wounds are obsessive condiciones sine quibus non (conditions to his violent sexual assaults without which his crimes could not be). He had been doing this with surgical precision. Deviation from this ritual would not match his psychological make-up. In fact M’Lord this was what the forensic psychologist (the State’s own witness) testified. In casu he had once more taken utmost care to stick to his obsessive behaviour: a sexual assault, followed by the slashing of the deceased face several times. M’Lord, how could this professional mutilator of his victims’ bodies have reconciled himself thereof that suddenly this time around there would (and this is my respectful submission) be an unfortunate accident resulting in his also slitting the deceased throat? He had never been a murderer simply because he prides himself on his meticulous textbook mutilation of his victim’s faces only. Subjective reconciliation of the possibility of death ensuing, given the forensic psychologist’s expert evidence, would be anathema to my client’s way of doing things.”

 

“And besides, when the knife slipped, my client accidently also cut his own wrist and sustained such severe injuries that he spent five full days in hospital and he himself escaped death narrowly. If it were argued that my client had reconciled himself with the possibility of the deceased dying, then it would absurdly have to be conceded that my client had subjectively reconciled himself with his own death ensuing. And this M’Lord, I respectfully submit would defy logic!’

Lest you might regard all these examples as farfetched, let now consider the judgment of Brand JA in S v Humphreys 2013 (2) SACR 1 (SCA). I quote:

[1] The appellant, then in his late fifties, was charged in the Western Cape High Court, Cape Town before Henney J with ten counts of murder and four counts of attempted murder. All these charges arose from a single incident which occurred on 25 August 2010 when a minibus, driven by the appellant, was hit by a train on a railway crossing near Blackheath on the outskirts of Cape Town. There were fourteen children in the minibus, ranging in ages between seven and sixteen years. Ten of the children were fatally injured in the collision, which gave rise to the ten charges of murder. Four of them fortunately survived, but were seriously injured. They were cited as the complainants in the four charges of attempted murder. At the end of the trial the appellant was convicted as charged on all fourteen counts and sentenced to an effective period of 20 years’ imprisonment.

[4] What then happened, according to the eyewitnesses was that the appellant overtook the line of vehicles on their right-hand side and approached the crossing in the lane destined for oncoming traffic. The crossing is controlled by two booms in Buttskop Road, one for traffic from the east – as the appellant was approaching – and the other for traffic from the west. Because the booms are positioned on different sides of the railway line, they can be avoided, even when they are down, by going onto the lane intended for oncoming traffic and by then returning to the correct lane to pass the boom on the other side. On both sides of the railway line there are also large stop signs as well as other traffic signs indicating a railway crossing. In addition there are large red warning lights directed at traffic in Buttskop Road that start flashing when a train approaches the crossing and just before the booms come down.

On appeal this accused’s four murder convictions (as with our fictitious accused above) were reduced to culpable homicide. [He was furthermore completely acquitted of all four attempted murder charges, but this note does not deal with this aspect]

Here is another excerpt from the SCA judgment, in justification for reducing Judge Hennery’s convictions of murder to that of culpable homicide.

18] . . . .  Put differently, the appellant must have been indifferent as to whether he would live or die. But there is no indication on the evidence that the appellant valued his own life any less than the average person or that it was immaterial to him whether or not he would lose his life. In consequence I do not think it can be said that the appellant had reconciled himself with the possibility of his own death.

[19]           My second reason for concluding that the appellant did not reconcile himself with the consequences rests on the evidence that the appellant had successfully performed the same manoeuvre in virtually the same circumstances previously.

Let me summarise Brand JA as follows:

1.                the accused himself had been seriously injured  when the trail hit his taxi, therefore he could hardly be said to have reconciled himself subjectively with the ten deceased dying; such conclusion would mean that he had subjectively reconciled himself with his own death;

 

2.                the accused’s previous adventurous exploits, having courted disaster and getting away with it, made assured him subjectively that he could in this matter survive again;

3.                a seasoned risk-taker, he could therefore not have reconciled himself subjectively with the possibility that he would fail this time around, with death as a consequence.

It would be presumptuous of me to criticise Brand JA on his exposition of the law relating to dolus eventualis. It would even be presumptuous to agree with the learned Judge of Appeal (which by the way, I do). But this having been conceded, suffice it to say that, If the law supposes this (which I am afraid it does), then the law is an ass―an idiot. And so am I.

LITERARY LEGAL QUOTATIONS—PART 1

FYODOR MIKHAIL DOSTOYEVSKY

Remember particularly that you cannot be a judge of any one. For no one can judge a criminal until he recognises that he is just such a criminal as the man standing before  him, and that he perhaps is , more than all men to blame for that crime. When he understands that, he will be able to be a judge. Though that sounds absurd, it is true. If I had been righteous myself, perhaps there would have been no criminal standing before me. If you can take upon yourself the crime of the criminal your heart is judging, take it at once, suffer for him yourself, and let him go without reproach. And even if the law itself makes you his judge, act in the same spirit so far as possible, for he will go away and condemn himself more bitterly than you have done. If, after your kiss, he goes away untouched, mocking at you, do not let that be a stumbling-block to you. It shows his time has not yet come, but it will come in due course. And if it come not, no matter; if not he, then another  in his place will understand and suffer, and judge and condemn himself, and the truth will be fulfilled. Believe that, believe it without doubt; for in that lies all hope and faith of the saints.

 

─ The Brothers Karamazov 

 

And if he is acquitted, make him come straight from the law courts to dinner with me, and I’ll have a party of friends, and we’ll drink to the reformed law courts. I don’t believe he’d be dangerous; besides I’ll invite a great many friends so that he could always be led out if he did anything. And then he might be made a justice of the peace or something in another town, for those who have been in trouble themselves make the best judges. And besides, who isn’t suffering from aberration nowadays? ─ you, I, all of us are in a state of aberration, and there are ever so many examples  of it: a man sits singing a song, suddenly something annoys him, he takes a pistol and shoots  the first person he comes across, and no one blames  him for it. In read that lately and all the doctors confirm it. The doctors are always confirming; they confirm anything. 

─ The Brothers Karamazov

 

What can be done about the way the common people think of our justice? Some of them find the mere word “trial” terrifying. 

─ Crime and Punishment 

 

Evidence! You overlook one infinitesimal detail ─ and it builds up to a whole Egyptian pyramid of evidence! 

─ Crime and Punishment

 

It is almost better to tell your own lies than someone else’s truth; in the first case you are a man, in the second you are no better than a parrot! 

─ Crime and Punishment

 

Out of a hundred rabbits you’ll never make a horse, and a hundred suspicions will never make  a proof, as an English proverb says, but that is mere common sense, and we have to try to deal with the passions as well, the passions, because even an examining magistrate is a man. 

─ Crime and Punishment

 

… where was it that I read  of how a condemned man, just before he died, said, or thought, that if he had  to live on some high crag, on a ledge so small that there was no more than room for his two feet, with all about him the abyss, the ocean, eternal night, eternal solitude, eternal storm, and there he must remain, on a hand’s-breath of ground all his life, a thousand  years, through all eternity ─ it would be better to  live so than die within the hour? Only to live, to live! No matter how ─ only to live! … How true! Lord, how true! How base men are! 

─ Crime and Punishment 

 

He went down quietly, without hurry; he was in a fever again, but unconscious of the fact, and full of strange new feeling of boundlessly full and powerful life welling up in him, a feeling which might be compared with that of a man condemned to death and unexpectedly reprieved. 

─ Crime and Punishment 

 

The first question he had been concerned with ─ a long time ago now ─ was why most crimes were so easily discovered and solved, and why nearly every criminal left so clear a trail.  He arrived by degrees at a variety of curious conclusions, and, in his opinion, the chief cause lay not so much in the material impossibility of concealing the crime as in the criminal himself; nearly every criminal, at the moment of the crime, was subject to a collapse of will-power and reason, exchanging them for an extraordinarily childish heedlessness, and that just the moment when judgement and caution were most indispensable. He was convinced that the eclipse of reason and failure of will attacked a man like am illness, developed gradually and reached their height  shortly before the commission of the crime , continuing unchanged at the moment of commission and for some time, varying with the individual, afterwards; their subsequent course was that of any other disease. The further question whether the disease engenders the crime, or whether the nature crime somehow in its always being accompanied by some manifestation of disease he did not feel competent to answer. 

─ Crime and Punishment 

 

Now you will say: evidence. Well, suppose there  is evidence; but evidence, you know old man, cuts both ways for the most part. I am only an investigator, and fallible like everybody else, I confess; I should like to produce deductions that are, so to speak mathematically clear; I want to have evidence that is like two and two make four! I want something like direct and incontrovertible proof! But if I put a man in custody at the wrong moment ─ even though I am sure that it was he ─ I may very likely be destroying my only means of incriminating him further; and why? Because I shall be giving him a definite position, so to speak, I shall give him, as it were, psychological certainty and tranquility, and once he understands that he is definitely accused, he will retreat from me into his shell. 

─ Crime and Punishment 

 

  ‘But why testify against oneself?’

  ‘Because only moujiks and very inexperienced greenhorns instantly and flatly deny everything, under questioning. Any man with even a scrap of intelligence or experience will be sure to try to admit, as far as possible, all material facts that cannot be avoided; only he will look for other reasons for them, turn them to reveal special and unexpected facets, which will give them a different meaning, and place them in a new light. 

─ Crime and Punishment

 

‘there must exist, I believe, a lawyer’s procedure, a legal method, applying to all sorts of investigations, by which they begin with trivial matters, far removed from the real subject, or even with something serious, so long as it is quite irrelevant, so as to encourage the person being interrogated, or rather to distract his attention and lull his mistrust, and then suddenly and unexpectedly stun him by hitting him on the crown of his head with the most dangerous and fatal question. 

 

─ Crime and Punishment

 

Prince Myshkin: “Yes—I saw an execution in France—at Lyons. Schneider took me over with him to see it.”
Servant: “What, did they hang the fellow?”
Prince Myshkin: “No, they cut off people’s heads in France.”
Servant: “What did the fellow do?—yell?”
Prince Myshkin: “Oh no—it’s the work of an instant. They put a man inside a frame and a sort of broad knife falls by machinery —they call the thing a guillotine-it falls with fearful force and weight-the head springs off so quickly that you can’t wink your eye in between. But all the preparations are so dreadful. When they announce the sentence, you know, and prepare the criminal and tie his hands, and cart him off to the scaffold—that’s the fearful part of the business. The people all crowd round—even women— though they don’t at all approve of omen looking on. And I may tell you—believe it or not, as you like—that when that man stepped upon the scaffold he CRIED, he did indeed,—he was as white as a bit of paper. Isn’t it a dreadful idea that he should have cried —cried! Whoever heard of a grown man crying from fear—not a child, but a man who never had cried before—a grown man of forty-five years. Imagine what must have been going on in that man’s mind at such a moment; what dreadful convulsions his whole spirit must have endured; it is an outrage on the soul that’s what it is. Because it is said ‘thou shalt not kill,’ is he to be killed because he murdered someone else? No, it is not right, it’s an impossible theory. I assure you, I saw the sight a month ago and it’s dancing before my eyes to this moment. I dream of it, often.”
Servant: “Well, at all events it is a good thing that there’s no pain when the poor fellow’s head flies off”
Prince Myshkin: “Do you know, though,” cried the prince warmly, “you made that remark now, and everyone says the same thing, and the machine is designed with the purpose of avoiding pain, this guillotine I mean; but a thought came into my head then: what if it be a bad plan after all? You may laugh at my idea, perhaps—but I could not help its occurring to me all the same. Now with the rack and tortures and so on—you suffer terrible pain of course; but then your torture is bodily pain only (although no doubt you have plenty of that) until you die. But HERE I should imagine the most terrible part of the whole punishment is, not the bodily pain at all — but the certain knowledge that in an hour,—then in ten minutes, then in half a minute, then now — this very INSTANT—your soul must quit your body and that you will no longer be a man — and that this is certain, CERTAIN! That’s the point—the certainty of it. Just that instant when you place your head on the block and hear the iron grate over your head—then—that quarter of a second is the most awful of all.

This is not my own fantastical opinion—many people have thought the same; but I feel it so deeply that I’ll tell you what I think. I believe that to execute a man for murder is to punish him immeasurably more dreadfully than is equivalent to his crime. A murder by sentence is far more dreadful than a murder committed by a criminal. The man who is attacked by robbers at night, in a dark wood, or anywhere, undoubtedly hopes and hopes that he may yet escape until the very moment of his death. There are plenty of instances of a man running away, or
imploring for mercy—at all events hoping on in some degree—even after his throat was cut. But in the case of an execution, that last hope—having which it is so immeasurably less dreadful to die,—is taken away from the wretch and CERTAINTY substituted in its place! There is his sentence, and with it that terrible certainty that he cannot possibly escape death—which, I consider, must be the most dreadful anguish in the world. You may place a soldier before a cannon’s mouth in battle, and fire upon him—and he will still hope. But read to that same soldier his death-sentence, and he will either go mad or burst into tears. Who dares to say that any man can suffer this without going mad? No, no! it is an abuse, a shame, it is unnecessary — why should such a thing exist? Doubtless there may be men who have been sentenced, who have suffered this mental anguish for a while and then have been reprieved; perhaps such men may have been able to relate their feelings afterwards. Our Lord Christ spoke of this anguish and dread. No! no! no! No man should be treated so, no man, no man!” 

─ The Idiot

CONSTITUTIONALLY OBJECTIONABLE EVIDENCE

A Working Document for South African Legal Practitioners

[Revision in Progress]

Unless Indicated Otherwise, all Statutory Citations Refer to the Constitution of Republic of South Africa Act 108 of 1996

 

I have avoided the generally used title ‘Unconstitutionally Obtained Evidence’; such phrasing presupposes the automatic unconstitutionality of evidence the very constitutionality of which s35(5) would want us investigate. This subsection, which provides that, “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”, has two legs. The generally used title concentrates on only the first part which, if read alone, would indeed create the impression that the affected evidence is ipso facto visited with unconstitutionally. But such damnation only besets such evidence after an investigation is launched into the impact of the latter part of s35(5) on the evidence, viz. will the admission of that evidence render the trial unfair or otherwise be detrimental to the administration of justice?

Therefore let us consign the opening words of s35(5) to the backbenches (although of course not to oblivion) and rather concentrate on what is mentioned after the word ‘if’. Let us enlighten ourselves that, although there might be an objection that evidence be excluded, there is nevertheless a safety door through which such evidence could be admitted. This evidence, ostensibly teetering on the brink of exclusion, is further away (than what the uninformed might think) from doing just that because the hat-trick the Prosecution could come up with is that—as the second part of s35(5) reads—the admission of that evidence would not render the trial unfair or not otherwise be detrimental to the administration of justice. Therefore, can we under such circumstances be heard to speak about “Unconstitutionally Obtained Evidence’”? Such evidence cannot from the outset be condemned to “Unconstitutionality”. This approach unjustifiably gives the Bill of Rights the infamy for being overprotective towards the accused. The evidence is not “Unconstitutional”, but at most “Constitutionally Objectionable”.

 

Summary:

·                  The evidence must have been obtained in a manner that violates any right in the Bill of Rights;

·                  First ascertain if a right mentioned in the Bill of Rights was infringed;

·                  If not, cadit questio  (end the enquiry then and there);

·                  This obviates an unnecessary potentially protracted enquiring into whether or not the evidence should be excluded. S v Naidoo 1998 (1) SACR 479 (N) at 502e-f.

·                  But if it were established that a right mentioned in the Bill of Rights had been indeed violated, there is a  risk that the evidence might be excluded―but remember only “might”;

·                  The reason for using “might’ is that, even if a right were definitely proved to have been thus infringed, another inquiry should be launched into “if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”―i.e., an inquiry into the second leg of s35(5);

·                  So there is only a risk because the exclusionary rule is not absolute;

·                  The prosecution will in this event be hard pressed to prevent this evidence from being excluded;

·                  This can be achieved by convincing the Court that “the admission of that evidence would not render the trial unfair or not otherwise be detrimental to the administration of justice.”

This note only deals with the first leg of s35(5) and furthermore concentrates on only on those rights most relevant to Constitutional Criminal Justice, as treated of in the law reports viz., the Right to remain Silent, Legal Representation, Privacy and Dignity.

 

THE FIRST LEG

Categories of Persons Specifically Protected in the Bill of Rights

The Bill of Rights specifically distinguishes between the rights of:

·        arrested persons (s 35(1));

·        detained persons (s 35(2)),and

·        accused persons (s 35(3))―however, for the purposes of s35(5) the right of an accused is not directly relevant as these rights are specifically covered by s35(3).

 

Take Note

·        In practice It is not all that necessary to differentiate between arrested and detained;

·        Usually, upon arrest, arrestees would be under the control of the arrestor in the event of which they would automatically become a detained;

·        For our purposes, a consideration of most of those rights relating to arrestees (s35 (1)) could be projected onto detainees (s35 (1)).

 

THE ARRESTED

Section 35 (1) mentions the right:

·        to be informed of the right to remain silent (s 35(a);

·        to be informed promptly of this right (s 35(b);

·        to be informed of the consequences of not remaining silent (also s 35(b);

·        not to be compelled to make any confession or admission that could be used in evidence against that person (s 35(1)(c)).

 

Take Note

·        These apparently separate rights are essentially the same in content;

·        A person who is compelled to talk obviously wanted to remain silent in the first place.  S v Melani 1996 (1) SACR 335 (O) at 347e-h;

 

Practical Applications of the Right to Silence

[A]

It is argued that evidence is constitutionally objectionable in that the accused was not informed of their right to silence.

·                  It should first be ascertained when exactly the alleged infringement took place;

·                  By establishing that the constitutional right had not existed at the time of questioning, a protracted constitutional enquiry could be avoided;

·                  If the violation took place prior to the arrest, the s 35 injunction would not apply;

·                  Arrestees should also be warned of the “consequences of not remaining silent”―viz., any statement made could be used against them at the trial;

·                  This warning should be given “without delay”;

·                  Therefore, the police cannot arrest and incarcerated and explain the right to remain silent hours thereafter;

 

[C]

It is alleged that the right to silence was infringed by the taking of finger/footprints, blood samples, the identification parade process, etc.

 

(a) Blood samples / Fingerprints

·        The police are empowered to conduct these procedures in terms of s37 (read with s 225) of the Criminal Procedure Act;

·        Police can “take such steps as he may deem necessary” to determine these features—arguably, even by using reasonable force (s 37(1)(c));

·        Remember, if the validity of any statute is raised in the lower courts, “the court shall decide the matter on the assumption that such law . . . is valid” (s 110(2) of the Magistrate’s Court Act).

·        The cases cited below do not deal with challenges to the validity of s 37 and 225;

·        The objections revolved around the fact that the arrestee should have been warned of the right to silent prior to the ascertainment of the bodily feature;

·        In other words, the courts dealt with the application of s 37 vis-à-vis the Bill of Rights, not its validity;

S v Huma & Another (2) 1995 (2) SACR 411 (W) at 417d-e; S v Maphumulo 1996 (2) SACR 84 (N) at 90c-d); Levack & Others v The Regional Magistrate, Wynberg & Another 1999 (2) SACR 151 (C)

 

Case Law Summaries

·        I the above it was held that, during these procedures arrestees do not give oral statements;

·        They only provide what is called 'real' / physical evidence;

·        The right to remain silent is therefore not infringed.

 

 

(b)          The Right to Remain Silent and Identification Parades

It is argued that the evidence should be excluded because the accused had not been warned of their right to remain silent before the ID parade was held.

·                  However, during ID parades, arrestees do not say anything orally, or by conduct;

·                  Those on the parade are observed, knowingly or unknowingly;

·                  The witnesses are asked to say or do something with regard to the observed, e.g., to point out the culprit, if possible;

·                  There is no risk that the ID parade evidence as such would infringe the right to remain silent;

·                  Even a voice sample does not constitute giving a statement;

·                  A voice sample is not testimonial evidence, it amounts to real/physical evidence;

·                  The sample is given not to analyse the contents of what was said, but the manner in which it was said.

See also S v Ngwenya 1998 (2) SACR 503 (W) at 508-9; S v Mokoena 1998 (2) SACR 642 (W)

 

[C]

The right to silence and s 36 of Act 62 of 1955: Found in possession of reasonably suspected stolen property, whilst being unable to give a satisfactory explanation for such possession.

·                  It is objected that the arrested had not been warned of the right to silence before being asked to give the required explanation;

·                  Remember, first enquire if the arrested, at the time of questioning was arrested or detained;

·                  The police would have to question persons to enable themselves to arrive at the very decision as to whether or not to arrest;

·                  Usually those questioned would be neither an arrested nor a detained;

·                  They would not have the right to silence and therefore need not be explained anything in this regard.

S v Langa & Others 1998 (1) SACR 21 (T) at 26i-7a.

See also Osman & Another v A-G, Transvaal 1998 (2) SACR 493 (CC) at par [11] to [12] the Constitutional Court held that s 36 did not infringe:

·        the right against self-incrimination (s 35(1)(c); and

·        the right not to be compelled to give self-incriminating evidence; (s 35(3)(j));

·        s36 does not compel anybody to do or say anything, or involve pressure being applied;

·        Such persons have a choice to give an explanation for the possession of the goods;

·        No prejudice is suffered at trial in the absence of an explanation;

·        They can reserve the right to give an explanation afterwards at the trial.

[N.B.: This argument becomes a little more complicated regarding persons who have not yet been arrested/detained viz., those questioned as Suspects. I have dealt with this debate separately in a previous blog].

 

THE DETAINED PERSON

The component of s35 (2) that has in practise elicited the most litigation is the right to legal representation and/or legal aid (s 35(2)(b) and (c)):

2) Everyone who is detained .has the right-

(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

 

Practical Applications of the Right to Legal Representation

 

[A]

The Right to Legal Representation at ID Parades

S v Mhlakaza & Andere 1996 (2) SACR 187 (C) (at 119h)

·                  Persons are entitled to legal representation at an ID parade;

·                  The state could prove that there were sound reasons why such assistance had not been available and that the participant had not been prejudiced by the absence of a legal representative;

[NB: This is the position adopted by the Cape High Court]

Contra: S v Mphala (1) 1998 (1) SACR 654 (W) at 606e-f

·                  The legal position corresponds to that governing the taking of finger/footprints and blood samples. (supra);

·                  Whether or not a legal representative present, the accused does not have the right not to take part in an ID parade.

 

[B]

 

Often neither the presence of arrested/detained nor their co-operation is required at certain pre-trial investigations, e.g., a photo ID parade.

·                  During a photo ID parade only the witness and the investigating officer are usually present;

·                  Here the affected parties would not be entitled to legal representation as they would have no role to play;

·                  The same argument applies upon an allegation that the detained had a right legal representation when witnesses are being interviewed or during their pointings-out.

See: Hlalikaya and Others 1997 (1) SACR 613 (SE) at 616g-617c; Zwayi 1997 (2) SACR 772 (CkHC)

 

 

THE RIGHT TO PRIVACY (S 14)

·        This right is often violated in the cause of unlawful searches and seizures;

·        The provisions of the CPA that are the most important are s 20, 21 and 22;

·        s20 sets out what articles the police may seize;

·        s21 provides that these articles may as a rule only be seized under search warrant;

·        s22 sets out when person or premises may be searched without a warrant.

 

Privacy and s 22 of the Criminal Procedure Act

·        The provision that has elicited the most litigation is s 22;

·        s 22 allows the police search (without a warrant) any person or premises for the purpose of seizing certain articles under the following circumstances;

-        if the person-

i.       concerned consents to the search for and the seizure of the article;

ii.      who may consent to the search of the premises consents to such search and the seizure of the article in question; or

-        if the police on reasonable grounds believes that-

i.       a search warrant will be issued to him if s/he applies for it; and

ii.      the delay in obtaining the warrant would defeat the object of the search.

 

Take Note

·        Most objections revolve around the fact the police seized and searched property without a warrant;

·        Let us assume that the article seized or searched is covered by s 20, i.e., that it was concerned in or was reasonably believed to have been concerned in the commission or suspected commission of an offence.

·        It might be argued that the evidence was obtained in contravention of the right to privacy;

·        Put aside the argument as to the constitutionality of  s22 a lower court cannot pronounce upon the constitutionality of a statute;

·        The mere fact that the police searched the person or premises without a warrant does not mean that the search is a violation of that persons right to privacy;

 

Consent to the Search

The following Specific Points with regard to Consent

 

Example A

·        A lessor consents to the search of a room leased to a tenant;

·        Goods in such room are not under lessor's custody or control;

·        The lessor has no right to pry into tenant’s private possessions;

·        The consent by the lessor would not render the search and seizure lawful.

See: S v Moloutsi 1996 (1) SACR 78 (C) at 87c-d

 

Example B

·        The accused gave consent under protest merely in order to co-operate with the police in their investigation;

·        The accused’s behaviour might not amount to consent as envisaged by s 22(a) and that the seizure of the property might be unlawful.

See Ndlovu v Minister Of Police, Transkei, and Others 1993 (2) SACR 33 (TK)

[See further the following cases on the question as to who may consent in terms of s 22(a) and under what circumstances such consent is valid: S v Mayekiso en Andere  1996 (2) SACR 298 (C); The Minister of Safety and Security v Nombembe 1998 (2) SACR 160 (T) at 164a-165a]

 

Reasonable Grounds for Belief

·        A police official's belief that a magistrate would grant a search warrant in terms of s 20(b) if applied for must be based on reasonable grounds;

·        The existence of such a belief is to be adjudicated objectively on all the facts;

·        The onus is on the State to prove that reasonable grounds existed at the time when the search was conducted.

S v Mayekiso en Andere 1996 (2) SACR 298 (C)

·        When the police on reasonable grounds concluded that a search without a warrant was necessary, it would be in exactly the same as if a warrant was obtained;

·        The police could even If resisted conduct the search and seizure lawfully;

·        When the person suspected gives consent to the search, such person could not deprive the official of the right to seize the incriminating articles any more than consent could prevent the official, armed with a warrant, from seizing the articles.

See Nel v Deputy Commissioner of Police, Grahamstown & Others 1953 (1) SA 487 (E) at 490c-d

 

THE RIGHT TO HUMAN DIGNITY (S10)

Is the taking of fingerprints (and, especially blood) is an infringement of the right to human dignity?

Take Note

·        Such objection could be countered with the following points from  S v Huma and Another (2) 1995 (2) SACR 411 (W) at 417d-e;

-        The taking of fingerprints does not constitute inhuman or degrading treatment;

-        This procedure is accepted worldwide as a proper form of  individual identification;

-        The prints are taken in private and not in Court or a  public place;

-        No physical pain of any kind accompanies this process;

-        It has to be borne in mind that those fingerprints will be destroyed in the event of the accused being found not guilty;

-        Fingerprints can potentially be helpful to the accused in proving innocence;

-        This procedure therefore does not infringe a person's physical integrity.

 

PROCEDURAL MATTERS

The Onus Debate

The divergent views in this regard can be set out as follows:

a.      S v Hammer and Others 1994 (2) SACR 496 (C)), at 499d-e; S v Soci  1998 (2) SACR 275 (E) at 288h-289c

·        There should be no presumption in favour  of or against the reception of the evidence, the question of an onus should not be relevant;

·        The rules of law relating to the burden of proof did not apply, either for the final decision of the question, or for proof of the individual facts which bore on that decision;

·        A balanced and flexible approach was necessary;

·         

·        There is no onus on the State to disprove the alleged violations of the accused's rights under the Constitution.

 

 

b.      S v Sebejan and Others 1997 (1) SACR 626 (W) at 628e. S v Mathebula and Another (supra) at 129e-f.

·        The onus is on the defence;

 

 

c.      S v Naidooo 1998 (1) SACR 479 (N) at 523a

·        The defence bears the burden of proving, the existence  of the constitutional right on which the accused relied and its infringement;

·        This onus need only be discharged on a preponderance of probabilities;

·        It might well be that during the course of a trial-within-a-trial the onus on different issues would tend to shift back and forth between the accused and the State.