9. Practical aspects of the criminal trial

When one considered the heavy burden of proof on the district attorney, the discovery rights of the defendant that do not have to be reciprocated, the requirement for a unanimous verdict, the right to a speedy public trial and to even have the State pay for an independent criminal defense counsel if the accused can not afford one, it would seem that no one is likely to ever be convicted of a crime in such a system.

Recall that the defendant does not even have to prove anything: it is up to the State to prove its case beyond a reasonable doubt to a moral certainty and the defendant can remain entirely passive and silent and the prosecutor still lose if he or she cannot meet that high burden of proof.

Yet, in reality, most trials result in verdicts of guilty and most cases do not even go to trial since the accused pleads guilty to a lesser included offense well over eighty percent of the time. With all the burdens on the State, why is this true, why would any defendant plead out and not require the State to meet its seemingly remarkable burden of proof?

While the law would appear to favor defendants, the fact of the matter is that the practical aspects of criminal law and criminal trials do not.

First, it is remarkably expensive to hire and use private legal counsel in a defense case and one must realize that one does NOT receive compensation or reimbursement of legal expenses from the government even if found not guilty. A minor criminal defense legal bill not only requires payment for the lawyer, but for investigators and experts often hired to counteract the police laboratory experts, etc. It is typical to spend twenty to fifty thousand dollars for a simple criminal case and major ones can cost hundreds of thousands of dollars. Even a relatively minor criminal defense, such as drunk driving or shop lifting, can run to over five or ten thousand dollars.

The average person accused of crime does not have a great deal of money. Studies have demonstrated that the average criminal defendant in the United States is poor, black, and a repeat offender. Inevitably those persons are defended by the public defender's office which has very good lawyers but is hopelessly overworked and understaffed. While the district attorneys are equally busy, they can pick and chose which cases to prosecute, have police witnesses who are both credible and compensated by the state to appear, and excellent experts also paid for by the State.

Secondly, there is a definite prejudice against those accused of crime. While the court will instruct the jury to presume the defendant innocent until proven guilty beyond a reasonable doubt, in reality the average citizen supports the police and the prosecutor and does not believe they would arrest and charge an innocent person. Any experienced defense counsel will advise that overcoming this initial prejudice is a primary goal of the voir dire and the opening statement for the defense. Despite the law, the fact is that the defense DOES have the practical burden of overcoming this presumption of guilt existing in the minds of many jurors. While a good defense lawyer can quickly educate a jury as to its true duty in requiring the prosecutor to meet proof beyond a reasonable doubt, the fact remains that the famous burden of proof placed on the State is far less powerful than it would seem.

Thirdly, the police seldom arrest and the district attorney seldom charges those not guilty of something . As one felon remarked to this writer, "If they are hassling you they push you around but they aren't going to charge you with nothing...They beat you up if you are innocent but let you go...they only bust you if you did something since they don't like to handle cross examination from fellows like you." In this writer's experience, less than five percent of his clients were not guilty of at least a lesser included offense. This necessarily means that the evidence is likely to be heavily weighted against the defendant but it also means that the defendant can not testify without committing perjury (since he or she would otherwise have to admit committing the crime) which no ethical attorney can allow.

Under the Code of Ethics an attorney can not knowingly use perjury. For this reason many defense counsel do NOT want to be told the entire truth by their clients thus avoid really speaking to their clients about the facts of the matter so they will not "know." But that "solution" is equally dangerous since the counsel will not really know all the facts thus will not be in a very good position to handle the case that may develop. Without the defendant being truthful with counsel, it is impossible to adequately prepare for the likely impeachment of the defendant on the stand.

Without the defendant refuting the charges with his or her own testimony, the jury can not hear the refutation of the police and other witnesses that would seem to be appropriate from their point of view and even though the judge will instruct the jury about the right of the defendant not to take the stand and instruct them that no evidence of guilt should be inferred from that...the effect on the jury is obvious.

Also, once a defendant takes the stand, the defendant can be asked if the defendant was convicted for certain serious offenses in the past and the effect on the jury of hearing of the past convictions can be disastrous. The initial prejudice against the defendant becomes astronomical if the jury hears that the defendant has already been convicted of past crimes. (One of the common motions brought before trial is to have past convictions ruled inadmissible for purposes of impeachment since the effect would be so prejudicial and courts can bar use of such impeachment. However, most courts will allow at least some reference by the district attorney to serious previous convictions of the defendant who takes the stand.)

Fourthly, while the defense counsel may see various legal defenses of use and may be willing to challenge the prosecutor's case, the average criminal defendant is the one facing the catastrophe of incarceration or worse and is seldom willing to take the chance of trial if any reasonable offer is made by the prosecutor. Unlike civil cases in which the result, at worst, is paying money to the other side, in a criminal case one's entire life is often altered forever if one loses since one is removed from society for months or even years. In capital cases, one is fighting for one's very life. The risks are so staggering, the cost so high, the trauma in one's life so great, that cutting it short by a plea bargain is often a very attractive alternative. Perhaps too attractive since it is by no means impossible to win a criminal trial and good legal counsel can force the district attorney to lose. One must always recall that the case against O.J. Simpson appeared hopeless...until he won acquittal...and acquittal required a unanimous verdict of not guilty.

It is not easy to win a criminal case, but it is by no means impossible and to surrender without a fight is to guaranty the worst possible result. One must confront criminal charges with calmness and determination and recognize both the challenges ahead...and the need for good legal counsel. Whether guilty or innocent, you are entitled to the best defense available and the State is required to adhere to the entire Bill of Rights enacted to protect those accused of crimes; including proof of guilt beyond a reasonable doubt to the unanimous satisfaction of a jury.