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Common Misconceptions About Criminal Law

Mike's recent post on perceptions of the criminal justice system yields the following:

1. Thecops did not read me my rights. I must have a client tell me that with what looks like hope in their eyes at least once a month. No rights means bad arrest, right, they seem to suggest. Wrong. The rights are to be read only for custodial interrogation. Television has done a great disservice to the world by making Miranda warnings seem like a prerequisite to a valid arrest.

2. Its only circumstantial evidence.I wonder how many people are sitting in prisons today because they thought circumstantial evidence didn't count. Just the other day, a family came in to see me. Would I take an appeal for a man convicted of murdering his wife? "The case was only circumstantial," they said. "What of it?" was my reply. It bears repeating again and again and again: circumstantial evidence is as probative as direct evidence.

3. The CSI effect. While we're on the topic of circumstantial evidence, consider, for a moment, what circumstantial evidence really is: it is a permissive inference a fact-finder may draw from direct evidence. Who gets the benefit of these permissive inferences? I say the state. Toss a little science, even junk science, into "proof" of a case, and jurors start thinking they are the heroes of a television series. I know prosecutors worry that public expectations of proof are too high given the influence of these shows. That fear is misplaced. Jurors are being trained that all crimes can, and should, be solved. Not show survives long that does not "solve" a crime. We have created expectations that all questions have answers. My hunch is that the state gets the benefit of the doubt on most inferences.

4. Where there is smoke there is fire. Do we really believe in the presumption of innocence? During your next jury selection in a criminal case, ask the following question: If the judge were to ask you this moment to vote guilty or not guilty, how would you vote? Most jurors will say they cannot vote, as they don't know enough. These jurors do not understand the presumption of innocence. The law requires a not guilty vote unless and until the state overcomes the presumption beyond a reasonable doubt. Trial is not an atheletic contest. When trial begins, the defense is the winner. Many jurors are uncomfortable with that. They assume that the defendant is there for a reason: Where there is smoke there is fire.

5. Guilt Matters. Perhaps the biggest misconception about criminal law is the belief that a trial is a morality play. Affixing guilt means proving responsibility for a bad act. This moral dimension of trial misconcceives what trial is about. We try cases not as passion plays or as potential acts of redemption -- no man is redeemed when convicted and sentenced to live; no victim made whole because another must now suffer, too. Trial is about proof of fact. It is about holding the state to its burden of proof. Clients seem offended when I tell them I don't care whether they did what they are accused of or not. But their moral guilt, how they respond to the hurt they may have brought upon themselves and others, is not a lawyer's concern. Whether morally guilty or not, a lawyer's job is simple: Hold the state to its burden. God and the theologians can make their moral accounting at a later date and time. Lawyers defend people accused of bad acts; they do not defend the right to commit bad acts.

6. Other people's problems. Until a loved one is accused or convicted of a crime, the criminal courts are dark places inhabited by fiends; criminal defense lawyers are little more than scum. Only when a loved one is accused does the perspective change. In such a moment, the full weight and power of random acts, assumption, pride, prejudice and all the human failings become apparent. In such moments, the state's power to destroy without feeling is apparent. In such moments, what looked like other people's problems suddenly become our own, and we see the need for defenders of people in trouble. That is the sum and substance of the criminal law, and I am proud of the fact that I can give my life, talents and energies to people in dark places.

Now, it's time to go practice what I have just preached. A new client has been called to trial today. He stands accused of sexually assaulting his daughter. He needs me.