Lost innocence: speculation and data about the acquitted.

• Author: Givelber, Daniel

"Trial by jury is not an instrument for getting at the truth; it is a process designed to make it as sure as possible that no innocent man is convicted." (1)

"I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." (2)

1. INTRODUCTION

   Acquittals are the mystery disposition of the criminal justice system. We know very little about them. The acquitted have no race, gender or prior criminal history. There is some data on how often judges and juries acquit, but there is virtually no analysis of why some defendants are acquitted or what the acquittal signifies, if anything. In practice, most prosecutors and defense counsel infrequently encounter the acquitted--there are more than fifty judgments for guilt for every not guilty verdict. (3) Double jeopardy precludes the state from appealing acquittals so there are no appellate court rulings on the subject of lawful acquittals. The very invisibility of the acquitted makes them an easy group to ignore. The occasional notorious acquittal supports the view that not guilty verdicts tell us little other than that juries are capable of behaving irrationally.

   What we think we know about acquittals comes essentially from two sources: Kalven and Zeisel's report on the American jury some forty years ago and anecdotes. (4) Kalven and Zeisel compared jury verdicts to what judge's claim they would have decided in the case. (5) Blackstone stated that "the law holds, that it is better that ten guilty escape, than that one innocent suffer" (6) and Kalven and Zeisel's study seemed to confirm that something like this was actually going on when juries returned not guilty verdicts. (7) They identified juries as more likely to acquit than judges, and developed a liberation hypothesis to explain the disparity. (8) If the case is close on the evidence, the jury is liberated to permit sentiment to guide its decision. In their words, the jury "yields to sentiment in the apparent process of resolving doubts as to evidence. The jury, therefore, is able to conduct its revolt from the law within the etiquette of resolving issues of fact." (9) Apparently unlike judges, juries permitted extra-legal concerns to temper strict justice when they acquitted the guilty.

   Anecdotes confirm the core assumption that "defendants are acquitted for many reasons, the least likely being innocence." (10) No criminal case in the last quarter century has generated more publicity than the murder trial of O.J. Simpson, a case in which the verdict is almost universally seen as historically inaccurate. Those who advocate for a zealous defense seem to delight in the irrelevance of the defendant's innocence to their work. (11) "Almost all criminal defendants are, in fact, guilty." (12) Trials are lessons in civics, and acquittals are the price the society pays for taking so seriously the obligation that the government has to be able to demonstrate guilt convincingly in open court for a defendant to be convicted. As one commentator characterizes it, criminal adjudication is an administrative process with trials operating as the occasional adjudicatory hearing designed to assure that the government is administering fairly. (13)

   Yet the typical justifications for treating acquittals as historically erroneous do not withstand analysis. The screening process is concerned with the existence of a prima facie case, not the validity of a defense. In the view of some, and contrary to Kalven and Zeisel, judges may be more likely, not less, than juries to acquit in trials. (14) The criminal defendant frequently has no way of communicating his or her story to anyone remotely neutral until the trial itself. Despite the enormous publicity generated by apparently irrational acquittals, there appears to be no basis for believing that these are anything but aberrational events. (15)

   Police and prosecutors are not more adept at determining whether a witness is telling the truth than twelve jurors devoted to answering that question. (16) The small percentage of defendants who resist plea bargains and insist on trial may all be counting on deficiencies in the prosecution's case rather than their own innocence, but there is no a priori reason to believe this is true. While some defendants undoubtedly do engage in witness intimidation, (17) there is neither data nor reason to assume that all or most or even a substantial fraction of those who go to trial do so. If all of those who go to trial are guilty of a more serious crime than witness intimidation, perhaps each of them has an incentive to commit the crime of obstructing justice in order to avoid conviction of a more serious offense. But those who are guilty of no crime lack that incentive and there is no basis for the belief that the only reason an innocent person has been acquitted is that she has intimidated the witnesses against her.

   This paper first explores the sources of the belief that the acquitted, like the convicted, are guilty. It then turns to the task of defining what actual innocence means. The second part examines the data supporting the view that the acquitted are guilty. What we know about pre-trial screening does not provide assurance that all of the innocent have been excluded from the system. The paper both reexamines the Kalven and Zeisel data and presents an analysis of data from a recent study of criminal trials in four major urban areas. The data are consistent with the view that acquittals may reflect the opportunity afforded the accused for the first time to present his side of the story to a relatively open-minded decision maker. The most likely reason for an acquittal in such circumstances, I suggest, is that the defendant is innocent.

2. IDEOLOGY AND DEFINITION

   1. Beliefs About Guilt and Innocence

      At bottom, the belief that the vast majority of the acquitted are really guilty rests on the assumption that neither the police nor the prosecutors would pursue criminal charges against innocent people. Neither police nor prosecutors believe it appropriate to arrest and prosecute innocent people and neither group has the resources to pursue marginal cases. Thus, it seems to make a great deal of sense that the only people prosecuted would be those to whose guilt the evidence clearly points. This belief solves a problem that might otherwise exist: how to justify the vast disparity in resources available to the state and the criminally accused. As Richard Posner puts it:

      I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented. But if we are to be hardheaded we must recognize that this may not be entirely a bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for the defense of indigent criminal defendants may be optimal. (18) Defense counsel do not directly challenge the dominant assumption that the acquitted, like the convicted, are guilty. (19) First of all, as Dershowitz suggests, criminal defendants are overwhelmingly guilty. (20) Even if the figures are not as extreme as one might conclude from examining judgments--fifty or more convictions for every acquittal--there is no reason to doubt the observation that a criminal lawyer who restricted her practice to the innocent would not have a great deal to do. In addition to being very rare in the population of those who plead or go to trial, the presence of actual innocents in any attorney's practice will be obscured by the insistence of many of the guilty that they are innocent. Moreover, because cases of falsely convicted innocents may appear indistinguishable from those of the correctly convicted guilty, defense counsel may not be able to tell the difference. (21) A defense lawyer needs to begin with the premise that what really matters is what the prosecution can prove, not what the defendant insists happened. Ethical rules push in this direction: the defense lawyer who pushes her client to acknowledge guilt is a defense lawyer who has placed herself and her client in an awkward situation if the client insists upon testifying.

      Ideology matters as well. At a minimum, defense counsel view their role as forcing their government to secure convictions in an open and lawful manner. Securing acquittals for the guilty serves the important end of forcing the government to follow its own rules even its treatment of the most despised members of the community. While gaining an acquittal for an innocent person is important, it may not send as powerful a message about the government's commitment to its own rules as does the acquittal of a guilty person against whom the government simply failed to amass persuasive evidence.

      Defense counsel may also subscribe to the dominant assumption because any other view might render their work emotionally and practically unsupportable. Consider this description of the effect of a belief in innocence upon the behavior of a defender:

      Given the defense lawyer's typical relationship to truth, there is a stunning change in perspective when a lawyer represents someone who is innocent. Suddenly, there is nothing more important than the truth, nothing more sacrosanct. Now, the lawyer who is ordinarily indifferent to the truth is outraged that the system is indifferent to it. Sometimes the defense lawyer representing a client he or she believes to be innocent is downright desperate. Gone is the cocky irreverence that characterizes many defenders. Gone is the nonchalance. Defenders who seek to vindicate a factually innocent person wear their hearts on their sleeves: "Please...