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What if someone was arrested and tried - could there be a fair trial?

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What if someone was arrested and tried - could there be a fair trial?

Post by coati mundi on 27.02.14 17:37

The thought  occurs to me that anyone arrested and tried for any possible involvement in Madeleine's disappearance (barring what I think is the unlikely event of a certain two people ever being arraigned) could not in almost any circumstances have a fair trial.

I am not familiar with the Portuguese criminal trials process, but if it is anything like that of England and Wales (different process in Scotland) the following would have to be considered:

1. The parents of MM would have to be called as witnesses. Any defence lawyer worth their salt would want to cross-examine them. I'm not sure if there would be a means to compel them to attend - such as a Witness Summons in England and Wales. 

2. In the absence of evidence (testimony) from Mr and Mrs any lawyer would make a submission to the judge that the trial should not go ahead. Without evidence (by evidence here I mean live evidence in the witness box) from those closest to the events of 3rd May 2007 no safe conviction would be possible. 

3. Another submission would be that in the absence of any evidence placing the accused in apartment 5a on the night in question (for instance DNA or fingerprints, shoe-prints, fibres, etc) there would be no case, or at least insufficient evidence for it to be safe to proceed to trial. There would be a great deal of reasonable doubt in those circumstances before any trial began. Again, I am assuming that the Portuguese system operates on the principle of "beyond reasonable doubt" - this I don't know (their standard of proof could be higher than that).

4. Any identification - for instance, one based on the "Tannerman" would be easy to bring into doubt or indeed discredit-  the light on the night in question just for one. The amount of time for which the witness saw the suspect is also crucial (again, I am basing this on English law, which may not pertain to Portuguese case law or statute) and whether what they had was a "fleeting glance". In England an identity parade would be insisted upon. There would also be a number of inconsistencies in this identification, given that one witness saw someone whom two other people on the spot failed to see.

5. The PJ files - given that they are publicly available in their entirety - would be available to the defence and tends to point away from any new suspect who might turn up. 

6. Existing forensic evidence (and people should always refer to things like this as "evidence" - evidence and proof are different things. Evidence is material that it is reasonable for a court to consider - it only becomes proof if it is part of what led to a conviction) again would tend to point away from any, at present, unknown accused. It would have to be proved that the new suspect/defendant was also in the villa rented by two certain parties, have been in contact with a certain hired car and have been in contact with clothes and a cuddly toy, well after the event.The evidence of the dogs cannot, of course be given by the dogs, but evidence of their reactions and the science behind this could be given by their handler. Forensic evidence always requires a forensics expert to give live testimony (if disputed) to explain how the findings were arrived at and for the court to test how reliable the findings are. 

7. I don't know know whether Portuguese courts operate the system of voice dire - essentially a "trial within a trial" in which the admissibility of evidence is contested by the defence and ruled on by a judge in the absence of jury - but if it does there would be much to argue in such a process. 

8. Short of a band of gypsies, a group of burglars, various pimply, sinister or suspect-looking men (or even a troupe of clowns perhaps) who could be proved to have been present in Praia Da Luz on the night in question, and at the appropriate time, confessing outright and showing the police where MM is (whether dead or alive) there would be no prospect of a conviction of anyone newly arrested, and probably not enough evidence to make it safe to proceed to trial. 

9. Of course they might turn a record of a mobile phone call in which someone says to someone else. "OK, I've burgled the apartment and got the little English girl. What do I do next?" But how likely is that?

10. Should a certain two other persons be arrested and tried, however, almost everything I've said about the evidence would work in reverse. 

Just a thought (and sorry it took me so long to express it).

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by diatribe on 27.02.14 18:57

@coati mundi wrote:The thought  occurs to me that anyone arrested and tried for any possible involvement in Madeleine's disappearance (barring what I think is the unlikely event of a certain two people ever being arraigned) could not in almost any circumstances have a fair trial.

I am not familiar with the Portuguese criminal trials process, but if it is anything like that of England and Wales (different process in Scotland) the following would have to be considered

I am not sure that the process is the same, others have stated that Portugese trials are adjudicated upon by judges as opposed to juries which would elimate to a degree the element of bias a jury might incur as a result of media coverage. In other words a verdict would be based on the legal aspects, not emotion emanating from inflamatory news coverage.

1. The parents of MM would have to be called as witnesses. Any defence lawyer worth their salt would want to cross-examine them. I'm not sure if there would be a means to compel them to attend - such as a Witness Summons in England and Wales. 

I don't see that the McCanns as parents of Madeleine would be called upon to give evidence, as accused persons it would surely be their prerogative as to whether they decided to testify in their defence or not. Obviously their attendance would be mandatory as in any other criminal trial. Whether they decided to sit in the courtroom or spend their time in the cells beneath the court would again be a matter for them to decide.

2. In the absence of evidence (testimony) from Mr and Mrs any lawyer would make a submission to the judge that the trial should not go ahead. Without evidence (by evidence here I mean live evidence in the witness box) from those closest to the events of 3rd May 2007 no safe conviction would be possible. 

It depends what type of evidence you are referring to, if it were forensic evidence it would have to be presented by forensic scientists, if it were witness evidence it would be presented by witnesses, etc. etc. with defence counsel given the opportunity to cross examine the aforementioned. Obviously if there wasn't any tangible evidence or  credible witnesses, there wouldn't be a trial in the first instance.

3. Another submission would be that in the absence of any evidence placing the accused in apartment 5a on the night in question (for instance DNA or fingerprints, shoe-prints, fibres, etc) there would be no case, or at least insufficient evidence for it to be safe to proceed to trial. There would be a great deal of reasonable doubt in those circumstances before any trial began. Again, I am assuming that the Portuguese system operates on the principle of "beyond reasonable doubt" - this I don't know (their standard of proof could be higher than that).

Again, if there weren't any tangible evidence or credible witnesses, no-one would have been arraigned and no trial would be transpiring in the first instance which appears to be the type of situation you are describing.

4. Any identification - for instance, one based on the "Tannerman" would be easy to bring into doubt or indeed discredit-  the light on the night in question just for one. The amount of time for which the witness saw the suspect is also crucial (again, I am basing this on English law, which may not pertain to Portuguese case law or statute) and whether what they had was a "fleeting glance". In England an identity parade would be insisted upon. There would also be a number of inconsistencies in this identification, given that one witness saw someone whom two other people on the spot failed to see.

Identification evidence in the British justice system is not enough on its own to obtain a conviction and hasn't been since the mid 1970's after the cases of Peter Hain and George Davis. I don't know about the Portugese justice system, but any prosecution against the McCanns would have to be based on more solid evidence than identification, certainly in the instances of Tannerman, Crecheman, Smithman and whatever other man. In any event this doesn't appear to be a case that is going to revolve on witness identification evidence if for no other reason, there doesn't appear to be any.

5. The PJ files - given that they are publicly available in their entirety - would be available to the defence and tends to point away from any new suspect who might turn up. 

Any evidence intended to be used by the prosecution would have to be disclosed to the defence.

6. Existing forensic evidence (and people should always refer to things like this as "evidence" - evidence and proof are different things. Evidence is material that it is reasonable for a court to consider - it only becomes proof if it is part of what led to a conviction) again would tend to point away from any, at present, unknown accused. It would have to be proved that the new suspect/defendant was also in the villa rented by two certain parties, have been in contact with a certain hired car and have been in contact with clothes and a cuddly toy, well after the event.The evidence of the dogs cannot, of course be given by the dogs, but evidence of their reactions and the science behind this could be given by their handler. Forensic evidence always requires a forensics expert to give live testimony (if disputed) to explain how the findings were arrived at and for the court to test how reliable the findings are. 

Nothing or no-one can be considered to be valid evidence until presented under oath in a court of law  and undergone cross examination by either the defence or prosecution counsels.

7. I don't know know whether Portuguese courts operate the system of voice dire - essentially a "trial within a trial" in which the admissibility of evidence is contested by the defence and ruled on by a judge in the absence of jury - but if it does there would be much to argue in such a process. 

I would imagine that as in the UK, there would be some form of case management hearing or pre trial review where arguments would be made as to what is admissable and what is not.

8. Short of a band of gypsies, a group of burglars, various pimply, sinister or suspect-looking men (or even a troupe of clowns perhaps) who could be proved to have been present in Praia Da Luz on the night in question, and at the appropriate time, confessing outright and showing the police where MM is (whether dead or alive) there would be no prospect of a conviction of anyone newly arrested, and probably not enough evidence to make it safe to proceed to trial. 

Unless manufactured, I doubt whether there's a scintilla of evidence on this planet implicating anyone other than the McCanns and possibly their friends in the disappearance of their daughter, so the events you describe would appear to be  purely hypothetical.

9. Of course they might turn a record of a mobile phone call in which someone says to someone else. "OK, I've burgled the apartment and got the little English girl. What do I do next?" But how likely is that?

Highly unlikely, even the West Midlands Crime Squad of the 1980's would have considered that a bridge too far and they were suffocating prisoners with plastic bags forced over their heads.

10. Should a certain two other persons be arrested and tried, however, almost everything I've said about the evidence would work in reverse. 

That would depend upon who the other two persons you refer to are and what you mean by reverse.


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Re: What if someone was arrested and tried - could there be a fair trial?

Post by coati mundi on 27.02.14 19:04

The two other persons should be obvious.

What I mean is that the evidence would tend to point in their direction. There would be an absence of almost any other evidence for the prosecution. In fact, if they went into the witness box in their own defence (unlikely) their cross-examination would in all likelihood provide further powerful evidence for the prosecution.

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by diatribe on 27.02.14 19:11

@coati mundi wrote: In fact, if they went into the witness box in their own defence (unlikely) their cross-examination would in all likelihood provide further powerful evidence for the prosecution.
That's why these obvious persons you refer to never have and never will put themselves in a position where they can be cross examined on any pertinent matters relating to the disappearance of their daughter.

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by coati mundi on 27.02.14 19:29

Diatribe. I agree with your comment that unless manufactured there isn't a scintilla of evidence against anyone else. That's what I was trying to point out by imagining that some patsy is put up in court for it.

However hypothetical it might be, we have countless examples of some poor sod being fitted up for somone else's crime.

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by Watching on 27.02.14 19:40

@diatribe wrote:
@coati mundi wrote: In fact, if they went into the witness box in their own defence (unlikely) their cross-examination would in all likelihood provide further powerful evidence for the prosecution.
That's why these obvious persons you refer to never have and never will put themselves in a position where they can be cross examined on any pertinent matters relating to the disappearance of their daughter.

Mr & Mrs have and would still  avoid setting foot in Court of Law, like one would avoid the plague, unless of course it involved them leaving financially better off. That latest nonsense with Mrs turning up at the libel to put on a show outside the Court then Mr turning up - nothing more than a pantomime.  Other than them having 'no choice' in the matter they will never put themselves in the position where they would take the stand in any trial for any matter.

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by Cristobell on 27.02.14 19:44

@coati mundi wrote:The thought  occurs to me that anyone arrested and tried for any possible involvement in Madeleine's disappearance (barring what I think is the unlikely event of a certain two people ever being arraigned) could not in almost any circumstances have a fair trial.

I am not familiar with the Portuguese criminal trials process, but if it is anything like that of England and Wales (different process in Scotland) the following would have to be considered:

1. The parents of MM would have to be called as witnesses. Any defence lawyer worth their salt would want to cross-examine them. I'm not sure if there would be a means to compel them to attend - such as a Witness Summons in England and Wales. 

2. In the absence of evidence (testimony) from Mr and Mrs any lawyer would make a submission to the judge that the trial should not go ahead. Without evidence (by evidence here I mean live evidence in the witness box) from those closest to the events of 3rd May 2007 no safe conviction would be possible. 

3. Another submission would be that in the absence of any evidence placing the accused in apartment 5a on the night in question (for instance DNA or fingerprints, shoe-prints, fibres, etc) there would be no case, or at least insufficient evidence for it to be safe to proceed to trial. There would be a great deal of reasonable doubt in those circumstances before any trial began. Again, I am assuming that the Portuguese system operates on the principle of "beyond reasonable doubt" - this I don't know (their standard of proof could be higher than that).

4. Any identification - for instance, one based on the "Tannerman" would be easy to bring into doubt or indeed discredit-  the light on the night in question just for one. The amount of time for which the witness saw the suspect is also crucial (again, I am basing this on English law, which may not pertain to Portuguese case law or statute) and whether what they had was a "fleeting glance". In England an identity parade would be insisted upon. There would also be a number of inconsistencies in this identification, given that one witness saw someone whom two other people on the spot failed to see.

5. The PJ files - given that they are publicly available in their entirety - would be available to the defence and tends to point away from any new suspect who might turn up. 

6. Existing forensic evidence (and people should always refer to things like this as "evidence" - evidence and proof are different things. Evidence is material that it is reasonable for a court to consider - it only becomes proof if it is part of what led to a conviction) again would tend to point away from any, at present, unknown accused. It would have to be proved that the new suspect/defendant was also in the villa rented by two certain parties, have been in contact with a certain hired car and have been in contact with clothes and a cuddly toy, well after the event.The evidence of the dogs cannot, of course be given by the dogs, but evidence of their reactions and the science behind this could be given by their handler. Forensic evidence always requires a forensics expert to give live testimony (if disputed) to explain how the findings were arrived at and for the court to test how reliable the findings are. 

7. I don't know know whether Portuguese courts operate the system of voice dire - essentially a "trial within a trial" in which the admissibility of evidence is contested by the defence and ruled on by a judge in the absence of jury - but if it does there would be much to argue in such a process. 

8. Short of a band of gypsies, a group of burglars, various pimply, sinister or suspect-looking men (or even a troupe of clowns perhaps) who could be proved to have been present in Praia Da Luz on the night in question, and at the appropriate time, confessing outright and showing the police where MM is (whether dead or alive) there would be no prospect of a conviction of anyone newly arrested, and probably not enough evidence to make it safe to proceed to trial. 

9. Of course they might turn a record of a mobile phone call in which someone says to someone else. "OK, I've burgled the apartment and got the little English girl. What do I do next?" But how likely is that?

10. Should a certain two other persons be arrested and tried, however, almost everything I've said about the evidence would work in reverse. 

Just a thought (and sorry it took me so long to express it).


Brilliant! And I'm delighted you took the time to express your thoughts  smilie 

I agree, I can't see any way in which a trial can proceed unless they have got the right defendants in the dock. It is also highly unlikely (impossible) that the Portuguese would have re-opened the investigation if they did not foresee a successful prosecution.

As you say Coati Mundi, so much evidence already exists that discounts an abductor, in the event of a burglar with amnesia being charged with the Crime of the Century, the case for the prosecution is already dead in the water. I usually compare this case to repairing a rocket in space - they have to work with what they have, and they have no evidence of an intruder in 5A, and plenty of evidence to say an abduction was staged.

One of the reasons I remain optimistic, we would have to go right outside the realms of logic to believe this case can be whitewashed.

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by coati mundi on 27.02.14 22:42

I seem to have lost a post in which I was trying to reply to Christobel and to explain why I became interested in the case and I haven;t time to rewrite it 

However, I will say that I wish I could share the optimism of some people on this site, but I doubt that the SY investigation was set up to draw the obvios conclusions. On the contrary, I think its purpose was and is to make sure that the McCs are never prosecuted. They will either exhaust all the other possibilities and declare it an unsolveable mystery (mainly because of supposed Portuguese incompetence) or try to fit up some patsy (who cannot be convicted and whose rightful acquittal they can also blame on the Portuguese).

One of my favourite maxims, though comes from the Italian Marxist, Antonio Gramsci. It is "pessimism of the intellect, optimism of the will".

So I will think of two rays of light that there may be:

1. Goncalo Amaral wins the libel case - with all the possible consequences that may bring.

2. The McCs are so desperate to keep their private fund  search for Madeleine going that they keep talking   until they talk themselves into real trouble.

Can anyone please tell me how to incorporate previous poster's comments into you own comments? I'm new to all this.

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Re: What if someone was arrested and tried - could there be a fair trial?

Post by diatribe on 27.02.14 23:28

@coati mundi wrote:

However, I will say that I wish I could share the optimism of some people on this site, but I doubt that the SY investigation was set up to draw the obvios conclusions. On the contrary, I think its purpose was and is to make sure that the McCs are never prosecuted. They will either exhaust all the other possibilities and declare it an unsolveable mystery (mainly because of supposed Portuguese incompetence) or try to fit up some patsy (who cannot be convicted and whose rightful acquittal they can also blame on the Portuguese).



There are some sincere and well intentioned people on this forum who have faith in the Met. Police investigation, alas, I do not share their optimism and nothing that has transpired since the instigation of this investigation has changed my mind one iota. The fact that the incumbent gov. who instigated this investigation have selected Clarence Mitchell as a parliamentary candidate for their party at the forthcoming 2015 General Election is a clear indication of where their allegiances lay.

The further fact that a former director of the Find Madeleine fund and lifetime friend of Kate McCann, Esther Mcvey, rapidly achieved a ministerial post after being elected as an MP at the 2010 election doesn't bode well either, as doesn't the 'poor tormented family' remark from the Met. Commissioner of Police, not to mention the £millions being spent inventing fictitious characters and chasing spurious paedophiles around the world.

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