a reply to: InTheLight
One of the things I was concerned about in Marie Henein's defense strategy was her decision to try the cases of three different complainants at one
time, because of the danger of bringing in "similar fact" evidence that might influence the way the judge looked at the case.
In her summation she referred to indications in the testimony of "collusion" between the complainants, that would have made a "similar fact"
application by the Crown inadmissible.
That's the kind of fine point that would be given more weight by a judge than by a jury, I think.
A judge would have thought, "I don't know if they were actually colluding, but in their communications with one another, they were making noises like
that kind of duck, which opens the door to 'reasonable doubt' about the matter of collusion".
I'm not sure that would be the case in a jury trial.
Henein's most important choice in all of this was to opt for trial by judge alone. Ghomeshi's weakness was his reputation, i.e., the record of
complaints against him.
Henein played a faultless game of legal snooker, and ran the table.
Her only "close call", in my opinion, was the low probability that a similar fact evidence based guilty verdict would appeal to Justice Horkins more
than a more easily defensible not guilty verdict based on the clear cut fact that witnesses lied about their relationships and their expressed
attitude to their alleged abuser, under oath.
I think that if an accused is compelled to testify and if witnesses are called to undermine an accused's character and credibility and we move away
from the present narrow focus on the facts at issue in the original complaint, we will see significant "legal drift" in cases and examples of where
cases become unmanageably bulky and cumbersome.
edit on 31-3-2016 by ipsedixit because: (no reason given)
edit on 31-3-2016 by
ipsedixit because: (no reason given)