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Tuesday, December 20, 2022

404 B OR NOT TO BE

 Harvey Weinstein was convicted in a LA courtroom this week of rape. In a hotly contested trial, he was convicted of some counts and acquitted others. 

In this essay a former prosecutor argues in the NY Times for the increased use of 404b evidence in sex crimes trials because of how difficult it is to get a conviction.  ( for you robed readers, that's evidence of other crimes, wrongs, or bad acts, supposedly not usually admitted). 

But limitations have their limits. As former prosecutors who handled cases involving many types of serious crimes, including sexual assault, we think trials for sex crimes are different from other trials, and these differences must be reflected realistically in the rules of evidence.

In other words- "sex crimes are different". How long until prosecutors ask for the burden of proof to be lowered in sex crime cases? We are heading in that direction.

We are at a nadir for the rights of accused. Blackstone's hallowed ratio that it is better to have 99 guilty men go free then one innocent woman convicted was long the bedrock of criminal justice in England and then the United States. No more. Now it is the reverse- we are willing to accept wrongful convictions, so long as the Harvey Weinsteins and OJs of the world are convicted.  There are 99 articles and op eds decrying the failures of the criminal justice system to convict the guilty, for every single article about the injustice of a black teenager sentenced to life for a crime she didn't commit, or as in the case we wrote about recently, for a young woman sentenced as a juvenile for an excessive term of years. 

People have little sympathy for the accused. There is not one potential juror who we interview who truly believes in the presumption of innocence. The next time you pick a jury, as them how many of them said to themselves "I wonder what he did" when they walked into the courtroom for jury selection? 

This is going to get worse before it gets better. We are incarcerating more people, for a longer period of time, and mistakes will be made.

More innocent people will be sentenced to prison, and it won't matter to them that they were accused of a sex crime they were innocent of. 

In his famous defense of  British soldiers, John Adams said this: 

We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.. 

John Adams, Argument for the Defense, December 3-4, 1770. 

You know what's the most disturbing thing about that quotation? There isn't one Judge in the REGJB or in Florida for that matter that would let a defense attorney say that in opening or closing arguments. 

Happy  Hannukah and when you light a candle, pray you don't get accused of a sex crime you are innocent of. 

Coming up: what a hot dog can tell you about your relationship with your clients. 

12 comments:

Anonymous said...

not 404(b). Stick to state court. Evidence of these types of bad acts is typically more admissible under 412-414.

Anonymous said...

"Blackstone's hallowed ratio that it is better to have 99 guilty men go free then one innocent woman convicted was long the bedrock of criminal justice in England and then the United States."

I thought Blackstone's hallowed ratio was it is better that 10 guilty persons go free than that one innocent suffer? And the link you provided says that, not 99 guilty men.

https://en.wikipedia.org/wiki/Blackstone%27s_ratio

Not convicting innocent people is supposed to be more important than punishing the guilty, so that's why we're supposed to give the accused the benefit of (reasonable) doubt. But is preventing the punishment of innocent people so important that it should override every other criminal justice objective? Blackstone said it is worth 10 guilty men going free to avoid punishment of one innocent man. You say 99. Are we to take Blackstone's ratio to mean that unjust punishment of an innocent must be avoided at all costs? Should we say it is better for millions or billions of guilty people to go free than for a single innocent person to be unjustly convicted? If that is the case, then maybe we should abolish all laws and prosecutions. So long as there is a criminal justice system, the chance of prosecuting and punishing an innocent person is never going to be zero.

Rumpole said...

It’s somewhat of a literary license to make a point. 99-1 just sounds better than 10-1.

Anonymous said...

"It’s somewhat of a literary license to make a point."

Well it's hardly a "hallowed ratio" if whatever lawyers feel free to change it to whatever numbers they think sound more poetic.

Anonymous said...

Isn't it something how we lionize John Adams's defense of the British soldiers and simultaneously venerate Crispus Attucks as a martyr for the American Revolution? Especially when Adams's defense of the British soldiers relied on him vilifying Crispus Attucks as some dangerous terrifying black man exhibiting "mad behavior" and then convincing the jury the soldiers' fear was justified because the crowd was a "rabble of Negroes"?

Was Adams's successful defense of the soldiers an honorable vindication of due process and rule of law, or just some old fashioned race baiting?

https://theamericanscholar.org/black-lives-and-the-boston-massacre/

Anonymous said...

Dolores Ibarruri aka La Pasionaria, general secretary of the Spanish Communist Party, used to say that it was better to execute 100 innocent people than to acquit one guilty person.

Anonymous said...

@11:14 - why does it have to be an either or proposition? Why can't it have been both "an honorable vindication of due process and rule of law, [and] just some old fashioned race baiting". Things are rarely that black and white (pun intended).

@435, the ratio isn't supposed to be a true ratio - it's supposed so impress upon the reader that the possible overreach of government conviction of innocent people is a far greater threat than possibility of a guilty man going free. As such, our system must be calibrated so that only the most competent evidence of guilt and the highest (reasonable) standard of guilt should result in the government depriving its citizens of liberty. Your suggestion that this amounts to an argument against a criminal justice system at all is asinine.

Evidence of prior bad acts should not be evidence of a crime at trial. Defendants are (or should be) on trial for their actions and not for the reputations.

Anonymous said...

If you can appeal to a jury’s fear, to help free your client, is it wrong to do so?

Is it wrong not to do so?

Kissimmee Kid said...

Dear December 20 11:14;

Two things can be true. You can honor Crispus Attucks and recognize that the poor soldiers who shot him were acting in self-defense.

Kid

Anonymous said...

@ 1:18

"Why can't it have been both "an honorable vindication of due process and rule of law, [and] just some old fashioned race baiting"

If Adams was "race baiting," then his defense was not an appeal to "reasonable doubt" or presumption of innocence or decency. It was an appeal to bigotry and prejudice that presumes black people are automatically more menacing and dangerous. What is even more remarkable is that the crowd was actually not mostly comprised of black people, but that Adams wanted the jury to think so because he thought it would help him create the impression that the crowd was more dangerous and so shooting them was more excusable.

"Your suggestion that this amounts to an argument against a criminal justice system at all is asinine."

As long as there is a functioning criminal justice system, there will always be a risk of prosecuting and punishing innocent people, even when the system thinks it is "calibrated so that only the most competent evidence of guilt and the highest (reasonable) standard of guilt should result in the government depriving its citizens of liberty." If you won't admit to any "true ratio" and keep invoking the melodramatic platitude that "the possible overreach of government conviction of innocent people is a far greater threat than possibility of a guilty man going free" and making it sound like conviction of innocent people is the ultimate evil that must be prevented at all costs, what other solution is there except to suspend all laws and prosecutions? If you are not willing to accept that "asinine" conclusion of abolishing the criminal justice system, then you are willing to accept the risk of some innocent people being convicted. So there must be some risk ratio drawn somewhere, however small you think it will be.

Anonymous said...

@ 1:31

"Two things can be true. You can honor Crispus Attucks and recognize that the poor soldiers who shot him were acting in self-defense."

If the people who shot and killed Crispus Attucks were poor soldiers acting in self-defense and the right, then how can we honor Crispus Attucks as some rigtheous martyr? How can he be an honorable martyr if we believe John Adams's line that he was some dangerous terrifying hulking "negro" who brought on his own death? It would be like revering Thomas More as an honorable martyr while simultaneously lauding Henry VIII's lawyers for sending a dangerous malcontent to the scaffold.

Anonymous said...

@ 1:28

Oh, of course. The professional excuse of duty. And there are lots of things you can appeal to in a jury.

"I'm not a racist, but if I can appeal to a jury's racism and fear of black people, I have to do it, because I must do anything to help free my client."

"I'm not a misogynist, because if I can appeal to this jury's sexism and make them think any woman who wears skinny jeans is asking for it, I have to do it, because I must do anything to help free my client."

Then again, why limit yourself to appealing to a jury's sentiments? If you can help free your client by bribing a witness or suborning a witness you know is lying if they still sound convincing enough, shouldn't you go that extra mile to free your client. Surely your client's freedom matters more than some petty bar rules?