But I’m Innocent, I Say!

Fred fidgeted as the jury filed into the courtroom. He couldn’t read their faces; they seemed neither happy nor sad. Just determined to announce their verdict. And, he guessed, eager to go home to their families.

He wondered if he’d ever get to go home. To his golden retriever, Spot, and his Siamese cat, Mr. Mittens. To his comfortable bed and his collection of Dr. Who bobbleheads. To his 75-inch television with Netflix and HBO and the surround sound speakers he’d installed himself, the quality so amazing that when he watched Star Wars, he could swear he was actually in the Millennium Falcon.

Or maybe he’d spend the rest of his life locked up in the state pen, doing time for a crime he didn’t commit.

The jury foreman stood and cleared his throat. Fred held his breath. “Your honor,” the foreman said. “We pronounce the defendant innocent!”

Fred fainted dead away.

Now, Fred probably fainted from relief. But if he knew anything about the law, he might instead have fainted because the author got things so very wrong.

In the US, there are only two verdicts a jury can issue in a criminal case: guilty or not guilty. That’s it. A guilty verdict means the jury found that the prosecutor proved every element of the crime beyond a reasonable doubt. A not-guilty verdict means the jury found that the prosecutor failed to prove at least one element beyond a reasonable doubt.

There are a couple of implications in this. One is that a jury may be pretty sure the defendant committed the crime, but they must still find him not guilty (also called an acquittal) if they have a reasonable doubt about any element of the crime.

But another implication is that even if the jury is dead certain the defendant is innocent, the legal system doesn’t allow them to officially say so. All they can do is say he’s not guilty–and that doesn’t have quite the same ring to it as “innocent,” does it?

This situation helps us understand why someone can be acquitted of a crime but then successfully sued for the same actions. O.J. Simpson, for instance, was found not guilty of murdering his ex-wife and her friend—because, presumably, the jury had a doubt about some of the evidence. But when the victims’ families sued him for wrongful death, the families won judgments against him of over $35 million. The standard of proof in civil cases is much lighter than in a criminal case; in civil cases, it’s just a preponderance of the evidence (meaning the winning side has slightly more evidence in its favor). While the criminal jury found the evidence insufficient to meet the high burden in a criminal case, the civil jury found the evidence against Simpson more convincing than not.

Some states do have procedures that allow people accused of crimes to have a court declare them factually innocent, but these procedures are used only rarely and in limited circumstances.

So if the jury finds our friend Fred not guilty, he will get to return home to his beloved pets and his home entertainment system. Unfortunately, he may find that the trial and the criminal accusations hang over him for years, especially since they’re matters of public record. Hopefully, Spot and Mr. Mittens will console him.




Pressing Charges

Ralph stood, arms crossed, as his ex-boyfriend broke down in tears.

“I’m so sorry!” Zachary sobbed. “I shouldn’t have stolen your wallet. I shouldn’t have used your cash to buy five hundred bucks’ worth of free weights and protein powder. I shouldn’t have used your credit card to buy plane tickets to Cabo for me and that guy I met at the gym. Please forgive me!”

Not in a forgiving mood, Ralph shook his head. “Too late. I’ve already filed a police report. I bet there’s a warrant out for you.”

Zachary wailed and fell to his knees. “I’m begging you, Ralph! I don’t want to go to jail. Please don’t press charges!”

Ralph just smiled.

Why is Ralph smiling? Because he knows something his cheating, stealing ex does not: it’s too late for what Zachary is asking.

Victims of crime generally have a choice whether to report it. And they can later make some decisions about how cooperative they want to be in aiding the police investigation. But the only one who can decide whether to press charges is the prosecutor.

This rule has two implications. First, even if a victim decides he doesn’t want the perp to go to jail, he can’t stop the prosecutor from bringing charges. And second, if a prosecutor decides for any reason not to bring charges, there’s nothing the victim can do about it. I know you’ve heard otherwise on a zillion TV shows and probably read otherwise in a zillion books. Ignore all that. The power to bring a criminal case belongs exclusively to the prosecutor. Not to victims, not to cops, not to judges.

Why? This goes to something I’ve blogged about before: the CJ system is intended to act on behalf of society as a whole. Not on behalf of victims. And the prosecutor is, essentially, representing society. You can guess this when you look at criminal case names, which often look like People v. Smith or New Jersey v. Jones. The inhabitants of that state as a whole are one of the parties, and they’re represented by the prosecutor. The victim is not a party to the case.

Now, victims do have some options. As I said, it’s often up to the victim whether to report the crime to police. If Ralph never told the police about Zachary’s misdeeds, the prosecutor would probably never have known that Zachary broke the law, and therefore no charges would have been filed. The victim can also decide how fully to cooperate. Technically, the prosecutor could use various legal means  (such as deposition and subpoena) to force Ralph to answer questions and testify in court. But in practice, if the victim is uncooperative, it’s often tough to get a conviction, so prosecutors may drop the case.

Regardless of what happens with the criminal case, Ralph can also choose to bring a civil lawsuit against Zachary. If he wins, Ralph can try to reclaim his monetary losses. But dragging it into court may not be worth it if the dollar amount is small or if attorney fees will eat up most of it. Or if Zachary is a deadbeat and has no way to pay the judgment.

The takeaway for you as a writer? Victims don’t press charges; prosecutors—and only prosecutors—do.

And Ralph needs to have better taste in boyfriends.


Jury of Your Peers

Marvin watched nervously as the jurors filed into the courtroom. None of them looked friendly. In fact, they looked mean. They all glared as if they’d already decided his guilt, even though the trial hadn’t even begun.

Swallowing thickly, Marvin tried very hard to look innocent. The tattoos on his cheeks—the ones that read DEADLY and KILLER—probably didn’t help. He should have listened to his mother. Too late, too late.

But as he noticed something else, he sat up straighter in the hard wooden chair. All of the jurors were at least twenty years older than he was, and unlike him, not a single one wore the purple braids indicating that he or she worshiped the Great Agapanthus Goddess.

Excited, Marvin poked his lawyer. “Hey! Hey!” Marvin whispered. “It’s a miscarriage of justice. It’s not a jury of my peers!”

Marvin’s lawyer gave him a pitying look. “I’m afraid I have bad news for you.”

Marvin’s screwed.

The language about a jury of one’s peers is old, having first appeared in the Magna Carta in 1215. Because I’m a nerd, here it is in the original Latin:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

And here’s the translation:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

The Latin word parium had a very specific intention back in the 13th century. It meant the members of a jury had to be no lower in social standing than the defendant. And since the primary purpose of the Magna Carta was to limit the rights of the king with respect to what he could do to other members of the nobility, the barons who wrote the thing weren’t intending to protect common people at all.

Flash forward half a millennium and across the Atlantic. When James Madison wrote the 6th Amendment to the US Constitution, he was certainly influenced by the text of the Magna Carta (and by the English Constitution):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But look what’s happened: there’s no mention at all of peers.

As a matter of practice, the 6th Amendment is interpreted to mean that a jury must be fairly representative of the community in which the crime took place. Not precisely representative, and not the same as the defendant himself. This means that potential jurors can’t be excluded because of certain factors, such as race, religion, gender, and so on. But in reality, juries are generally comprised of people who are older and more affluent than defendants—in part because poor people can’t afford to lose income while serving on a jury.

So where does this leave Marvin? Nowhere good, unless he can prove that the prosecutor systematically excluded young potential jurors and those who were loyal Agapanthans. Proving that is very difficult, though.

Marvin should have listened to his mother.


Where’s the Justice?

What happens in the courtroom has nothing to do with justice.

Today I’m addressing this issue posed by author Cody Kennedy. His upcoming novel, Thárros, deals with exactly this issue.

But how can I argue this? Criminal justice has justice right there in its title, right? Is it false advertising? Yeah, sort of. And be forewarned: this post contains my opinions. They’re well-informed opinions, though, with years of experience behind them, so I stand by them.

Here’s what you need to keep in mind:

  • Criminal justice has little or nothing to do with victims. It wasn’t designed to. We already have a civil justice system that allows people to demand monetary compensation for their losses via lawsuits. Nothing the CJ system does to convicted offenders—fines, probation, incarceration, death penalty—does victims any good, apart from perhaps giving them some sense of safety, satisfaction, or closure. (An exception to this is restitution, in which the offender pays the defendant directly to compensate for damage from the crime.) Victims play only a minor part in the CJ system, aside from their roles as complainants and witnesses and perhaps the submission of a victim impact statement before the defendant is sentenced. Those who study the CJ system say it acts on behalf of society as a whole, not on behalf of victims. In fact, sometimes victims may even be harmed by the process.
  • The primary principle behind the CJ system is due process, not justice. What does that mean? It means that the system aims for fairness. It exercises great care to make sure that rather complex procedures are followed. But even when the system is perfectly fair—which it isn’t always—it won’t necessarily be just. Some people we know to be guilty are going to go free because a cop screwed up. Some people we’re pretty sure are innocent are going to stay in prison because the proper channels were all followed at trial and during appeals but the exculpatory evidence (evidence that gets them off the hook) didn’t show up until it’s too late. Neither of these situations is just, but they are consistent with due process.
  • Prosecutors (and others) are practical. Currently, only 3 out of 1000 serious criminal acts result in a trial. I’ve blogged about this already. For now, what you should know is that prosecutors won’t charge someone with a crime unless they’re pretty sure they can get a conviction. There are several reasons for this, including the fact that district attorneys are elected, and they need good conviction rates to get reelected. In addition, there is huge pressure all around to plea bargain—to offer a defendant lesser charges if he pleads guilty. Without plea bargaining, our courts would be hopelessly backlogged. But this expediency means that even when it’s pretty clear that someone has committed a crime, there’s a good chance she won’t be charged with it at all, or that she’ll end up with a conviction for something much less serious.
  • The courtroom itself is a cipher. What if we have one of those rare cases that makes it to court? Human beings are going to make decisions about which evidence to present—decisions that are strategic but may not seem just. And a human being is going to make a decision about guilt. In fact, in the US that decision will probably be made by a group of a dozen human beings. One of my areas of academic research is jury decision making, so I can assure you that juries are strange beasts. They get influenced by all sorts of things, including the attributes of the defendant and witnesses and attorneys, as well as the specific ways the evidence was presented and arguments were made. And that’s not really justice either.

Now, having written all that, I need to add two things. Our CJ system is highly fallible. It makes mistakes. It’s used discriminatorily. It’s unfair. But. I also think it beats many of the alternatives and is far superior to the justice systems in much of the world.

What does this mean to you as an author? Remember that the CJ system is, ultimately, made of people. Like a good character, your CJ system should be imperfect. And as you write (or read) keep in mind the realities of the CJ system, and don’t try to make it do things it just doesn’t do.