5 Apr 18

Our “Criminal Justice System”

“The modern view of criminal justice is that public concern with morality or expediency decrees expiation for the violation of a norm; this concern finds expression in the infliction of punishment upon the evil-doer by agents of the state. The alleged evil-doer, however, enjoying the protection of a ‘regular procedure’”

Max Weber

Criminal trials are designed to produce a “determination” of guilt or non-guilt to formally instituted charges, alleging specific misconduct on the part of the defendant, that is statutorily defined and prohibited.

Juries may consider only evidence judges allow them to see, and that is presented at trial, in order to arrive at that “determination.” Criminal trials are “fair,” inasmuch as they move forward under a “regular procedure” (due process) and are governed by a known “set of rules.”

There is the legal defense of “alibi,” which allows the defendant to present evidence to establish that he was not available, because he was in another location at the time, or was otherwise unable to commit the misconduct alleged.

“Self-defense” is another acceptable defense to charges of murder, et al. With the self-defense argument, the defendant concedes that he committed the act alleged, but adds that, under the circumstances, it was a reasonable thing for him to do. He insists, in fact, that had no choice. In order to establish legitimate self-defense, it is almost always necessary for the defendant to personally testify in his own behalf, ever a risky strategy, because he will be subsequently subjected to vigorous cross-examination.

The jury must consider his testimony, along with all other evidence the judge allows them to see, but it is members of the jury who subsequently get to decide what testimony and other evidence is “credible,” and what is not.

When evidence presented at trial is sufficient to persuade jurors that the accused should be held “criminally accountable” for specific misconduct charged, they return a verdict of “guilty.”

When the jury is not so persuaded, they return a verdict of “not guilty,” which only means they were not
convinced by evidence presented. They don’t find the defendant “innocent.” They merely find him “not guilty.”

In-between, there is the “nolo contendere” (“no contest”) plea, and the “Alford plea.”
“Nolo contendere” means, “I may be technically ‘guilty,’ but I made no crime” A “nolo plea” may be significant in that it cannot be used against the defendant in a subsequent civil suit. During a civil suit, a previous “guilty plea” from a criminal trial, can be used against a defendant.

“Alford plea” means, “I didn’t do it, but I’d be stupid to refuse the ‘deal’ offered by the prosecution.” To some judges (and to me), the Alford Plea represents a cynical mockery of justice, and they will thus not accept it, but other judges will.

Under our System, we have thus interposed a “committee of citizens” who stand between the power of government and an individual who has been accused of a crime. Most other Western pluralistic democratic republics and constitutional monarchies have long-since done-away with the jury system.

Every accused in this nation is thus entitled to a “fair and public” trial, before a jury of his peers, as well as competent, professional representation (provided by the government when the defendant cannot afford it).

It is important to note that our System does not guarantee a “true,” nor a “right,” nor a “just,” nor even an “honorable” outcome. As a citizen, you only rate a trial that is “fair and public.” Nowhere in our Constitution is there a guarantee of “justice.” Our Constitution only guarantees “due process.”

By eliminating hearsay and allowing cross-examination. By eliminating leading questions on direct examination, but allowing them on cross, by disallowing lay opinion, but sometimes allowing expert opinion, by requiring proof “beyond a reasonable doubt,” and by observing a thousand other evidentiary “rules,” interpreted and enforced by judges, we give ourselves a good chance at a “fair process,” which, in turn, is our only chance (but far from a guarantee) of achieving “justice.”

This is far more than you rate in any other civilization!

Sometimes, judges have agendas, as do some jurors, prosecutors, police, media, and politicians, so sometimes “the fix is in.” And, criminal defense attorneys may be competent or incompetent. Accordingly, you don’t have to look far to find examples of “injustice.”

“Absolute truth” is known but to God. Unhappily, and for reasons known only to Him, God does not hold regular and convenient “press conferences!”

So down here, our jury system is the best we can do, and it is far from perfect, as we see.

But in spite of all its critics, our jury system does provide important protections, protections that are not inherent, as noted above, within other systems currently in force in other civilizations!