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Donald W. Shriver, Jr. on What Trials Cannot Do

Court trials cannot: prosecute the dead, secure direct testimony from the dead, or repair damages done to the lives of the dead; truly match punishments to crimes when the crime consists of the murder of many victims; put institutions and systems on trial; within usual rules against self-incrimination and torture, compel perpetrators to confess; summon classes of offenders newly tagged as such without engaging in the ambiguities of ex post facto prosecution — an ambiguity abolishable by legislative grants of general impunity; avoid, in most societies, the skewing influence of money and power on the effectiveness of prosecution and defence; always implement distinction between retribution and vengeance, especially in response to public demand for the latter; guarantee ‘closure’ or satisfaction among victims that justice has been done once a perpetrator has been punished, a problem further exacerbated by the traditional western judicial system which largely keeps victims on the margins of the whole process; always avoid adversarial abuse of plaintiffs, defendants, and witnesses; avoid scapegoating, especially in trials of leaders who required large constituencies for carrying out their crimes; or escape from the danger, inherent in the adversarial trial system, that the courtroom will become a playing field in which the most skilled, rather than the most truthful, side will win.

Perhaps the best of legal systems will always come to decisions freighted with ambiguous versions of truth. Judges and lawyers are not comfortable with ambiguous evidence leading to ambiguous decisions. A fortiori, for making judgments on the mixtures of guilt and innocence in many an ‘administrative massacre’, ordinary courts are weak determiners of truth. They are notoriously weak in those transitional situation in which the remnants of old unjust law and old unreformed judges still hold sway. In the interim, truth commissions fill a gap that courts cannot.

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