The Balance of Power

As promised, this week I want to talk about the balance of power in a criminal prosecution. To do that we will start with a fictional criminal offense and an allegation made that you dear reader have committed it. The scale at this time is fully tipped in favor of the prosecution side of the balance. The government has the resources and the manpower to conduct the investigation of the alleged offense. You, on the other hand, don’t know the law, the process or the procedure. The case is assigned to some investigator, could be a detective or and agent, if federal, and he will come “talk” to you. The scale remains buried against you. However, you have read my earlier posts and realize that, even though you are not guilty, it is in your interests to invoke your 5th and 6th Amendment rights. The investigator, is disgruntled and grouses about you wanting a lawyer, but you stand your ground. The scale moves slightly in your direction. The investigator talks to the prosecutor, this can be a district attorney or a U.S. Attorney.

Here the process is a little different depending on whether it is state or federal. In either situation the balance is solidly against you. Charges are filed largely at the discretion of the prosecutor. This person often has little to no information about the evidence of the case and is going strictly on the word of the investigator that it is a prosecutable case. In a federal case, it is taken to the grand jury where the assistant United States attorney presents his side of the case to the grand jurors who then return an indictment. There is an old saw which states, “Any halfway competent prosecutor can indict a ham sandwich.”

While an arrest could occur earlier, at this point the arrest is inevitable. Now you must have a lawyer. If you had retained counsel after the first law enforcement encounter you might be in a better position than if you merely invoked your rights but took no further action.

If you are indicted then your next scheduled court dates will be the arraignment and the trial. If charged by information in state court you have an initial appearance and subsequently a preliminary hearing. As a legal matter the preliminary hearing is the first opportunity to test the state’s evidence in your case and have it dismissed. In practice, however, cases are rarely dismissed at preliminary hearing. Indeed, the best you can hope for at this stage is gaining some additional insight into the prosecution’s case which will be helpful later. The burden of proof at this point is, “Probable Cause” which is very low and easily met by the prosecution. You have now been the “Defendant” in a criminal prosecution for several weeks and the strain and stress on you are taking their toll.

You want this over and are considering doing whatever it takes to end it. You wonder what kind plea you can enter to stop the madness and get on with your life. You did not do what you are charged with but you feel like you cannot go on with the defense. Then you are told this case has a mandatory minimum sentence which means any plea will require you to go to prison. Or you are told the prosecutor wants “time to do” which also means prison. Or the judge doesn’t like probation so ……. In the end, you realize that your only option is to continue to fight, which in itself helps energize your spirit.

I won’t go into “motion practice” because it is too dry and complicated to explain in a fictional case. But let’s assume you filed several motions and the court granted some and denied some. The result being that you are in a little better position than where you started. The scale moves again in your direction.

Finally you are at trial. Now the scale moves fully to your side of the balance. Now the prosecution must prove your guilt to a jury unanimously beyond a reasonable doubt.

Here is where your fellow citizens come into the picture. For the system to work as it is designed and intended, they must perform their duty fully and unconditionally. These jurors are not there to validate the prosecution’s case. If they take their job seriously, they stand between you and the power of the government to take away your freedom and will not let that happen lightly. Each criminal offense is composed of elements and the jury must find that each of those elements was committed beyond a reasonable doubt before you may be found guilty. As the defendant you have no burden of proof. The entire weight is on the prosecution and you do not have to counter any of their evidence with evidence of your own in order to be found not guilty. You are cloaked with the presumption of innocence, unless (not until) the jury finds all of the elements of the offense and thereby you guilty beyond a reasonable doubt.

You started this journey on the short end of the balance but at trial you have the full weight of the presumptions and the burdens on your side. I have tried many cases where we put on no defense evidence. Where the defendant did not testify. The jury found them not guilty because the government’s evidence was not sufficient, it was not beyond a reasonable doubt.