Should Anwar have Access to the Prosecution’s Evidence?

After all, if I were confident in my case and knew that I could argue my heart out on the merits and win a conviction for the good and true folks of my little town, then why should it be a cause of concern if the defendant knows what evidence I have?


Dr. Kevin Anderson

I often contemplate the parable of the college professor who shows his class an empty glass container.  He then places a number of large rocks inside the container and asks the class: “How many of you believe this container is full?” Of course, most in the class raise their hands.  With that the professor continues to pour increasingly smaller varieties of rock, from pebbles to gravel to sand into the container, at each interval asking the class the same question.  Eventually the class, marveling at the amount of material that the professor is able to fit into the container, is dumbstruck. At the end of the demonstration, the professor finally concedes that the container is, in fact, full.  He then pointedly asks the class about the meaning of the demonstration to their lives.  No hands go up.  Finally, in the rear of the class, a normally timid young woman raises her hand.  The professor calls on her, and in a trembling voice she says: “Our lives are the container and in order to fill our lives we must always start with the big rocks.  If we do that, we will always find room for the smaller rocks.”   

More about that in a bit. 

Perhaps it might be useful to view Anwar’s current legal struggle in the light of standards that exist outside of the Malaysian legal system.  Of course, we as citizens of a nation can only work within the framework of the legal system of our country or state.  Each sovereign has the absolute authority and prerogative to create laws that suit its people and that somehow reflect its legal history, its constitution and its overall mentality toward justice in general.  And, certainly, Malaysian law should not be compared with, and is in many ways entirely dissimilar to, U.S. law.  I understand this and am in no way suggesting that Malaysian law should be in lockstep with American legal precepts.  As a former prosecutor in the U.S., I have always marveled at the many attractions in Malaysian law, not the least of which is the ability of the government to appeal acquittals and to seek upward modifications of sentence.  Similarly, it certainly creates loads of new opportunities for closing arguments when the prosecutor is allowed to suggest that the defendant’s silence, under circumstances in which a reasonable man would be expected to cry out his innocence, is strongly suggestive of guilt.  I mean, from the state’s standpoint, what’s not to like?    

However, the present situation and battle being fought by Anwar is one that normally does not appeal to the majority of armchair legal quarterbacks who enjoy the pitched battle of actual trials:  what we sometimes refer to as “the guilt phase”.   This time, it’s the nitty-gritty stuff: evidence.  Anwar is now in the midst of what is referred to in my state as a “motion in limine”.  A motion in limine is any request, by either side, that may be raised prior to trial.  These normally are critical evidence motions, often involving issues associated with providing evidence as set forth in the relevant rules.  What Anwar is dealing with now, and which notably the government is appealing, is a decision regarding “discovery”.  Discovery is the term used in U.S. law to refer to the obligation of the parties in litigation (the State and the Defendant in a criminal case) to provide each other with certain information.  Both have obligations to disclose some portion of their intended evidence. 

My state of is no different than the other 49 states in its promulgation of criminal procedure rules that are strongly – and increasingly – deferential to the rights of criminal defendants.  There are a number of reasons for this, primarily the U.S. constitution’s grant to the accused of the right to a fair trial.   Beyond that is the requirement, accepted under Malaysian law as well, that governments prove guilt beyond a reasonable doubt.  The implication of this burden of proof on the discovery process is the widely held perception that the defense can only illuminate such doubt when it has the benefit of assessing the evidence.  Of course, there is the history underlying the formation of the 13 colonies: that a government with unbridled powers is a potential obstruction to liberty throwing back to touchy colonial issues such as freedom of worship, and taxation without representation.   

Honestly, as a prosecutor, I never cared much for the requirement to turn over my case to the defense.  Yet, I acknowledged that I represented the government: a well-oiled machine that had police, scientists, resources, credibility and, ultimately, the commonly-held belief within society that anyone who is charged with a crime is, well, probably guilty.  Remembering that the international symbol of justice is the blindfolded woman holding a scale, I always had to slap myself to remember that my disclosure of the state’s evidence went a long way in ensuring that balance.  After all, if I were confident in my case and knew that I could argue my heart out on the merits and win a conviction for the good and true folks of my little town, then why should it be a cause of concern if the defendant knows what evidence I have?  And, if his having the evidence allows him the opportunity to construct a lawful defense, then, at the end of the day, he has achieved his constitutional privilege of a fair trial.    Don’t misunderstand me.  I loved to win, perhaps too much.  One of the things I often overlooked and that, in fact, ultimately drove me out of criminal practice, was my slap-in-the-face learning moment that it wasn’t how many notches I had in my gun belt   It was all about letting the system work; about remembering that a man’s life and family are riding on judicial outcomes.    

But it’s not my light bulb moment that matters now.  It’s Anwar’s situation.

So, what is Anwar asking for?  And here, I do have to do a little tit-for-tat comparison, so please excuse.  Under my state’s law, the state must disclose all evidence that it intends to use at trial.  It must also turn over all exculpatory evidence (evidence tending to suggest the innocence of the defendant).  I, as prosecutor must also provide the names and reports of all experts I intend to call as a witness in the state’s case including the results of any tests or assessments done; the statements of any witnesses I intend to call, any tapes and recordings of statements made by the defendant, any information I have that tends to impeach the credibility of state’s witnesses, including prior inconsistent statements, relationship with the prosecution and evidence suggesting a character for untruthfulness.  Significantly, all the above-mentioned items must be disclosed without request.  They are what we call “automatic discovery”.   It would appear that Anwar’s requests do not exceed what the majority view in U.S. law would consider stuff to which he is entitled without even having to ask.     

The question I have then is a rhetorical one perhaps, yet one that must would appear to underlie the Anwar case at this point.  Why isn’t it automatic discovery in this case? There is nothing fundamentally unjust about Malaysia.  Its legal system is largely founded upon precepts of the British common law system, as is the American system.   Similarly, there is nothing magical, mystical, anti-Asian, overly liberal, American or even western about American rules of discovery.  They are simply a means to learn the truth in the judicial setting and to do so in a forum that offers a fair opportunity for both parties to access and benefit from that truth.  And, in a country whose judicial system seeks to demonstrate its independence and to dispel suggestions of impropriety, aren’t the truth and the search therefore its best friends?  Shouldn’t they be?  Isn’t the best response by government to allegations that Anwar’s trial is somehow politically motivated  – in the words of the old casino metaphor – to simply lay its cards on the table? To throw the chips in the air and let them fall where they may?  Ultimately, as strong as is the belief that one who is charged is guilty, is the belief that one who hides something has something to hide.  And, at the end of the day, all legal systems are based on such broad notions found within natural law.  

I am, perhaps, overly optimistic and believe that it is in the best interest of a government to ensure that, as the old legal axiom goes: “justice must be seen to be done.”  Malaysian discovery rules need not become clones of those followed in the U.S.  Nevertheless, at stake here and in every courthouse in every nation, town, county, parish, district or province in the world is a search for the truth and the ability of all sides to assist in finding it.  Remember the parable of the professor and the glass jar?  This is the big rock with which we must start when filling the container of a healthy, unassailable judicial system.  When we have loaded in the search for the truth, we will find that rules of discovery that assist in that search are somewhere between the gravel and the sand.  They will fit quite nicely.   Then the jar will be full.