One thing that non-lawyers often misunderstand about criminal trials is that they are not forums for discovering the “truth.” Criminal trials merely serve to answer one question: has the state (the prosecution) met its burden of proving beyond a reasonable doubt that all the required elements of a crime have been met. That’s it.
A defense lawyer’s job is not to prove innocence, but instead to show the prosecution has not met its burden. I’ve seen criminal trials where the defense mounted no case and still won by simply pointing out that the prosecutor had not shown all the elements were present.
In the criminal context, knowing everything can hinder a defence attorney.
Two scenarios:
Client does not tell his lawyer that he did it. At trial, the client testifies that he did not do it.
Client tells his lawyer that he did it, including all the gory details. At trial, the client testifies that he did not do it, and denies all the details the prosecutor puts to him.
#1 is OK for the lawyer, whereas #2 is very problematic for the lawyer when trying to balance the lawyer’s duty to the client against the lawyer’s duty to the court. The lawyer may not rely on the perjured testimony in submissions, and (depending on the jurisdiction) the lawyer may have to withdrawal from representing the client. (In my jurisdiction, Kanukistan, withdrawal would be required unless the lawyer could forthwith get the client to admit to the lie to the court.) A criminal lawyer must take care to limit what the client tells him so as to not restrict what the client can tell the court.
Not at all; the defense merely has to show that there is reasonable doubt as to whether it was properly handled, free of contamination, etc. Example, if written chain-of-custody documents are missing, then that doesn’t prove that the chain of custody was broken - but it certainly creates reasonable doubt.
I just finished up jury duty for a trial where the defendants’ lawyers were pretty sure their clients were guilty. They had told them to take a plea, but the two defendants insisted on going to trial.
Their lawyers worked hard to find something to create reasonable doubt, but it was fairly obvious that they were flailing for something – anything – to use. The prosecution’s evidence was pretty cut and dried, but they still had to find something. Once the prosecution produced tapes from a jail phone where the defendants admitted the crime, it was all over, and they were convinced to take a plea. As far as I know, though, the defense lawyers were never told by the defendants that they were guilty.
Another case around here had the defendant’s signed confession. There was no question of coercion, since it was written by the defendant as a suicide note: he failed and the police saw the note when the ambulance was called. The defense could only try to keep the note from being introduced in evidence; once they failed, they didn’t even try to call witnesses.
It actually might make the evidence inadmissible as a matter of law.
The chain of custody is a record-keeping procedure that allows a prosecution witness, at trial, to identify a piece of evidence as the same evidence collected during the investigation. When Officer Smith seizes the baggie of weed, places it in an envelope, seals the envelope, initials the seal, and notes the date, time, and incident number, the prosecution is entitled to produce that envelope at trial for Officer Smith’s identification. Anyone else handling the envelope in the interim must be identified as well.
The defense is still entitled to argue that the police faked/planted/altered the evidence, but the threshold of admissibility is met by the chain of custody procedures.
When those procedures are not followed, it’s possible that the defense can do more than argue the police must have altered the sample somehow: he can challenge its very admissibility.
Whether he’s successful in that challenge or not depends on a wide range of factors, most having to do with the nature of the evidence. In particular, evidence that is fungible, like drugs, is often inadmissible without the chain of custody proof, since one baggie of white powder looks very much like another baggie of white powder. On the other hand, if the murder weapon was a Colonial-era buck knife with distinctive scratches on the blade, the witness might be able to positively identify it even without chain of custody procedures in place. (In this case, “positively” means that it passes the admissibility threshold; the defense can certainly argue that the witness is mistaken or lying).
Right. A (non-affirmative) defense attacks the accuracy or sufficiency of the prosecution’s case. E.g. the prosecution brings forth a witness saying you were at a specific bar on May 10, but you bring the May 10 security camera footage from that bar and you are nowhere to be seen in the video. That casts some doubt on the prosecution’s case. If this doubt rises to the level of a “reasonable” doubt, you get off.
By contrast, an “affirmative” defense is independent of the prosecution’s case. For example, an affirmative defense could be “It doesn’t matter whether I did or did not kick Bill in 2008, because I am being charged with an offense of misdemeanor Assault and misdemeanors have a five-year statute of limitations in this jurisdiction.”
It’s a matter of common sense, really. Most nonmeritorious charges are dismissed or withdrawn prior to trial. That is to say, innocent defendants tend to be exonerated (or plead out) before the prosecution gets that far.
Well, the conviction rates in federal courts are over 90%. The numbers drop but are generally no lower than 55% in state courts. Obviously, conviction rates are not necessarily a true measure of factual guilt but they’re as close as you’ll get.
Well either the police went down to the street, twirled a bottle on the sidewalk, and grabbed whoever the neck pointed at, or they started interviewing witnesses and followed the trail of evidence back to a particular person. Presuming that they are not doing the former, then everyone brought in has objective evidence against them. Perhaps not enough for a conviction, but the presence of sufficient evidence for a conclusive trial isn’t a requirement for someone to be guilty. It’s a requirement for them to be found guilty, but not for them to be the actual perpetrator.
But the instant you have any evidence against you, no matter how tenuous (from a courtroom standpoint), the odds that you are the actual perpetrator probably go up a thousandfold. The odds that evidence would point to the wrong person, outside of television, is pretty low.
I recently served as juror on a case where the prosecution utterly failed to meet the standard of proof and the defendant was rapidly found not guilty.
A crime was undoubtedly committed. But the cops couldn’t / didn’t catch the guy who did it so they grabbed the guy standing nearby. Then the prosecution tried to pin the whole thing on him as one flavor or another of accessory.
Throughout the prosecution’s case they kept trying hard, and having the witnesses try hard, to blur whether they were talking about the actual acknowledged-but-missing crook or the guy standing around. Ultimately they confused a couple jurors pretty thoroughly.
Meantime the defense case consisted almost entirely of relentlessly pounding home the difference between the crook and the bystander. Cross was brutal as time after time it went like this: “So Officer, when you testified ‘His prints were found at the scene’, did you mean our defendant Smith or the other guy Jones?” “Um, er, I meant Jones.” “I see. Thank you.”
They also introduced a bunch of documents & business records that had no bearing on the crime, but did have the defendants name all over them, since they were legitimately his records. The “foundation” amounted to “He’s the defendant and these are his papers, so they must be relevant enough to introduce.”
I was not impressed by our local cops / prosecutors over those days.
A defense lawyer friend of mine maintains that his client isn’t guilty until the jury gives a guilty verdict. So even he doesn’t know if the client is guilty until then.
Of course he may well know if the person actually did what he was charged for but it’s “innocent until proven guilty”.
I know someone who is an attorney. One day we discussed a case where my friend was the defense attorney. He said he knew the defendant was guilty, and that he was obviously guilty, but that he deserved a vigorous defense as a matter of principle.
In my jurisdiction it requires first the Police to think there is enough evidence for a conviction and then a prosecutor to agree.
Even then many cases don’t make it to court as the defence often convinces the prosecutor there isn’t enough evidence. Or in some cases the judge will drop the case.
For a case to actually go to trial it’s already had several small ‘trials’ with enough people agreeing there’s a case to answer.
In my business I get to see cases after the prosecutor has lodged their paginated brief (or prosecution brief) but before they go to trial. As a result of defence picking the case to pieces (often using my reports) I’d say around 10-15% of cases get dropped.
Of the ones that actually go to trial perhaps 5% are in the doubtful area.
Perhaps I’m biased because I usually get to see a lot more evidence than is shown to the jury? I work for the defence and my job is to ensure that whatever evidence is used is accurate and complete - in my area of expertise. In most of my cases that means all of the technical evidence.
The only way we “know” if someone is actually factually guilty is because they have been found guilty at trial or have pled guilty. (Although both groups undoubtably contain innocent people). We know those numbers taken together probably exceed 90% of people charged. The numbers are out there, but from memory and experience, I’d say it’s around 98%. Of course, a significant number of those people are guilty of something less serious than what they were origiionally charged with.
It’s a good question. To find out what percentage of people who are charged with a crime are actually (really and truly-o, honest injun) guilty, you would have to find some scientific measure of guilt. Obviously 12 random people from the community, most of whom probably don’t even have master’s degrees, let alone a degree in a relevant discipline, don’t really stand a chance at developing a rigorous study methodology.
Bingo. Is there any way, other than through a verdict, that one can actually measure guilt or innocence? E.g. “The jury found him guilty, but I scanned him with my XL-9000 Guiltometer (New enhanced model Mk. 2 with improved sexual offense and securities violation detection technology) and he clearly reads between a 3.5 and a 4.2. According to Johnson (2015), anything below a 6 shows a 99% confidence for innocence, while anything below 10 shows a 95% confidence for innocence.”
Most of the time there is enough evidence for an attorney to know without asking the client. The reason being is that the client would not be prosecuted unless such evidence existed.
There are exceptions to this rule, but in general the prosecutor makes a decision to prosecute only when she has enough evidence to convince 12 jurors of guilt beyond any reasonable doubt. There’s no reason why such evidence would convince a prosecutor of guilt but not a defense attorney.
Certainly there are a lot of clear cut cases, but if you think all cases coming to trial are clear cut or that a significant amount of them are not then you are wrong (I don’t live in the USA, but I would be shocked if US prosecutors only proceeded with clear cut cases).
For example a prima facie case against the defendant can rapidly evaporate in the face of defence evidence or witnesses not proving to be as reliable as they may seem.
Based on my personal friends and acquaintances, I’d say that a significant number of those are guilty of something less serious than what they are convicted of.
Examples: Guilty of assault with a deadly weapon: convicted of attempted murder. Guilty of stupid drug-related crime: dishonestly convicted of scores of stupid drug-related crimes just to make the police arrest record look better. Guilty only of civil liability: convicted of criminal damage. Guilty only of schizophrenia: convicted of assault.
Apart from the cases where the police lied about the evidence (which I admit would be notable even if they are actually rare), these are cases where there is a lack of clear objective independent evidence to determine the extent and motive of the crime.
But overall it contributes to my lack of respect for the law and the courts.