Presumption of Innocence

I am going to alter what I stated I would discuss this week and save that to next week. This week I want to discuss a concept which has been much maligned over the last several years, especially on talk radio, as a legal fiction and something which need not be honored in “real” life. That concept is the “presumption of innocence.”

Our criminal legal system has only three parts. First is the prosecution. Second is the defense. Finally, is the court.

The defendant while involved is not a direct participant, unless the option of defending one’s self pro se is exercised. The alleged victim is not a participant though also involved. This moniker of victim is itself a misnomer at the early stages of the prosecution. The correct term would be “complaining witness” or simply “witness”. A criminal prosecution is NOT between the complaining witness and the defendant. A criminal prosecution is an action brought by the state or federal government against an individual.

If you are charged with a criminal offense the law presumes you are not guilty. This presumption endures throughout the prosecution. The burden of proof never shifts to the defendant. Yet the use of the term victim erodes that presumption. People claiming “victim” status, of late, have been heard to complain that their rights are less than the defendant’s. But this is as it should be. These persons are not being prosecuted by the government for something they are presumed innocent. The prosecutor is not the lawyer for the complaining witness.

The prosecutor is the lawyer for the power of the state or federal government. The prosecutor does not file any criminal charge in the name of the complaining witness. Indeed, the charging document may not even name the complaining witness in its text.

Someone many years ago, mistakenly, decided to equate privileges to which the complaining witness may be entitled to the Constitutional rights of a defendant. As a result Oklahoma passed a “Victm’s Rights” measure which provided the “victims” of criminal offenses with certain information during the prosecution. That law is still in full force and effect in this state.

Now a California billionaire has decided to change the Constitutions of several states, including Oklahoma. He has spent $900,000.00 dollars to enforce his will on the Constitution of Oklahoma. SQ 794 will alter the State Constitution in ways that have not been explored or explained. There has been no discussion as to why the current law is inadequate to the task of providing the information it mandates.

Preemptively the current law is, therefore, adequate in the absence of any criticism of any deficiency. The question has been passed in other states and is under challenge for violation of federal constitutional provisions. Montana has declared it un-Constitutional there. Other states are attempting to repeal the measure and its exorbitant costs.

At a practical level, if you are charged with an offense which you did not commit, you want an objective prosecutor weighing the matter. You do not want the person accusing you of being the final arbiter of your fate. This state question appears to give the ability of the “victim” to disapprove any disposition of the case. Private citizens should not wield such power in a criminal case. We recently watched a spectacle play out in Washington over allegations of prior conduct by an appointee. Those who have previously ridiculed the presumption of innocence were suddenly fully on board with that concept. As it was not a criminal prosecution there were no “victim’s rights” applications were involved. But “what if”? Should you be charged, and the prosecutor decided to dismiss the case, would you want the accuser to be able to block that independent professional decision? The accuser (victim) can even withhold evidence of the defendant’s innocence by refusing to be interviewed.

Finally, if you were charged and tried and found not guilty as the law requires, then this person is not a victim. This state question attempts to alter your rights as a citizen. There are no explanations of how to restore your altered rights under this state question. How do we make whole that which this state question would remove? What are the risks of proceeding with bad prosecutions to placate a vocal complaining witness; placing the innocent in greater jeopardy because it is easier than dismissing the case.

AS always these are your rights, protect them. We do not need to change the current law. Changing a Constitution is even more serious and should never be done for light and transient reasons, even one’s which sound good on the surface. YOUR rights to Due Process are in grave jeopardy in this question.

It is a dangerous position to question “victim’s rights” but because each of us is potentially a defendant which should always question such proposals with clear eyed skepticism and act with great reserve.

Law Enforcement Agent Promises

Last time I left the discussion of law enforcement agent promises to a later day. To keep these musings in some reasonable sequence it is a good time to engage in that dialogue.

Most have seen the various television cop shows where the detective makes some sort of deal with the arrestee to get the confession or other information. Sometimes the detective leads the person to believe that which is not true. But the TV character is usually the lead actor and as such he must have personal integrity and stops short of outright lying to the “perp”.

Most people are ill-equipped to handle an interrogation or as they are euphemistically called today an interview. Today’s police or, more broadly, law enforcement interviews are not the type generally depicted in movies or on television. They prey on a persons emotions, doubts and fears primarily. Plus, there may be out right lying about knowledge, evidence or other incriminating matters to get the person to make the statements desired. Courts have held that it is permissible for law enforcement to lie to people to get information as an acceptable form of investigative technique. Some common examples are the pretense of having all that is needed and giving the person a chance to save themselves. The pretense of being a friend to the person and the statements made will help that person either avoid charges or will get a better sentence. The assertion the agent “will go to bat” with the prosecutor or the judge for the benefit of the person. Another “oldie but goodie” is commiserating with the person, that is, pretending to have empathy with them and understanding what they did, just explain it a little more. One of my favorite techniques is the “brother in law” scenario. In this instance the investigator just happens to have a brother in law who was in the same situation as the person being interrogated. The investigator explains how he talked to his brother in law and the brother in law “came clean” admitted to his offense and the investigator was able to significantly help the brother in law.

Except this was all a lie there was never such a brother in law. Another ploy, is the “We can end this today, if you talk to me.” The inference is the investigation will stop and there will be no further jeopardy for the person, if they just admit to the acts desired by the agent.

So, with all of this arrayed against you, what do you do? The answer to this is as obvious as it is simple. You exercise your rights under both the 5th and 6th Amendments to the Constitution. First, you state that you are exercising your right to remain silent under the 5th Amendment (you must phrase it this way). Merely refusing to talk will not accomplish your legal goal, which is to not have your silence used against your interests. Second, you excercise your right to have an attorney of your choice (preferably) to counsel with you before any questioning. We have a small sign in our office library which states, “You have the right to remain silent, we suggest you consider it.” When there is an investigation into a criminal offense you should more than consider it, you should exercise it. The examples above are real. They are all statements which were used to get the person to make incriminating statements.

Remember these are your rights and you must be the one to exercise them. Next time we will talk about your rights, warrants and consent.

Until then,

Your rights use them or lose them.

Federal Prosecutions

This week let me focus on specifically federal prosecutions, as that is the focus of my practice and an area unfamiliar to most people.
Starting with, “Once upon a time” federal cases were reserved for the most serious violations of law with far reaching implications. The celebrated FBI “Ten Most Wanted” list with names like Capone, Gotti or Bulger. Cases involving counterfeiting of U.S. Currency. Cases which involved espionage, such as that depicted in the Tom Hanks film, “Bridge of Spies”. The Cali or Medellin drug cartels all conjure images of federal investigations and prosecutions. But how do these cases get started?

Unlike the majority of state cases, which are discovered in process and arrests made immediately. Or where there is an offense, say a murder or burglary and a brief investigation results in arrest of the defendant. Federal cases tend to be more deliberative, though not always.

The initiation of a federal prosecution can be a coordinated effort between the law enforcement agency (FBI, DEA, HSI etc.) and the Office of the United States Attorney. Specifically, an Assistant United States Attorney (AUSA) will coordinate with the case agent. The case agent is the lead investigator on the case which may have multiple other agents or even multiple agencies. Federal investigations may easily take months or in some cases years to bring to the point of being ready to file charges or colloquially prosecute.

During that investigatory time many things may be happening. There is usually some sort of surveillance of specific locations, especially in major drug cases. Often this surveillance is conducted by placing clandestine cameras in locations which give direct view of the subject home or business. Small and unobtrusive these cameras run 24 hours a day. Sometimes physical surveillance is conducted by aircraft, either helicopters or airplanes which are specially equipped to record visual and/or audio. In the case of such aircraft they also are able to use thermal imaging and detect heat signatures of vehicles recently driven or persons walking outdoors. There is debate as to whether the aircraft employ “Stingray” devices to ping or spoof cell phones, this is routinely denied. However, it is also known that certain agreements require the denial of such use as was discovered in a district court case in the District of Columbia.

Another frequently used investigation tool is referred to simply as a Title 3. In federal criminal prosecutions that refers to the interception of telephone calls by government agents. Without getting into the mechanics of obtaining the authorization, a federal court grants a warrant to make the interceptions. Once the warrant is obtained the target telephone number is then recorded every time it is used to have a conversation. The content of the calls is then divided into relevant or non-relevant, that is, talk which is pertinent to the investigation and that which is not. Such recordings can run into the hundreds of hours before a case is ever filed.

During this investigatory period, however long it may take, the government is amassing evidence and making records of the investigation for later use. Sometimes these are FBI 302s or DEA 6s which are reports of investigation and may contain a variety of information.
The government may “recruit” persons to assist in the investigation through arrests and “cooperation agreements” with the arresting agency. These generally need to be approved by the AUSA to have value later in the prosecution of that individual. Getting into such issues as government agent authority to make deals, promises and assurances is a topic for later.

So, for now, remember they are your rights, use them or lose them. Every encounter with law enforcement has the potential for arrest, be polite be courteous but be aware. Exercise your Constitutional rights to remain silent and to have counsel present.

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.

How TV Courtrooms Influence Public Perception

Television does a reasonably good job of entertaining us with crime/drama and lawyer (mostly prosecutor) shows. But it is a poor educator of how the system actually works.

There is one producer who decided some 20 plus years ago to make the prosecution of cases the “go to” format for lawyer shows. Gone were the days of Perry Mason, Owen Marshall and The Defenders. From the early 1990’s on the only good lawyers were prosecutors. While television may not be a good educator, it can frequently be a formidable influencer. If the only defendants shown are universally guilty then only one perspective is being depicted. This “conditioning” to believe the television portrayal of the system as reality results in a belief that all who are charged must by inference be guilty in real life. To be sure many people charged are, in fact, guilty. But be just as sure that not all people who are charged are guilty. This, to borrow from William Shakespeare, is the rub. We have recently been inundated with calls for believing “a person is innocent until proven guilty”. As a colleague recently noted that is not the correct admonition. Actually, it should be “presumed innocent unless proven guilty beyond a reasonable doubt”.

The depiction of criminal defense lawyers today is less than accurate also. In the Perry Mason, and others, day such people were depicted as performing a valuable service in protection of the liberty and rights of the accused. Today, the general depiction is much less noble and certainly a barrier to the prosecutor’s goal of gaining a conviction. The Innocence Project reports more than 360 DNA exonerations, that is people convicted but were arguably factually innocent. How does this happen? What of the “proof beyond a reasonable doubt?” Has our society so conditioned the public to belief the prosecutor is good and the defense is bad; that juries are willing to find innocent people guilty even if the proof is less than necessary? I have asked jurors during selection, how they would vote at that very moment. The most common response is they don’t know because they have not heard any evidence. Yet, it is because they have not heard any evidence that the only vote must be Not Guilty, this is the essence of the “presumption of innocence”. How can a principle so clear in its concept and so direct in its assertion be so difficult to apply in real life? People’s lives, their families and their freedom are destroyed because of a failure to understand these fundamental aspects of criminal prosecutions. Next time I will discuss the balance of power in a criminal prosecution.

Until then, as always: These are your rights, use them or lose them.