Law in Contemporary Society

Innocent by Circumstance

-- By MikeAbend - 28 Feb 2010


I don't think I'll ever be convicted of a serious crime. This determination is not the result of knowledge of my future actions, but from an estimation of my future circumstances. The American Justice system is just that—a system. And as a lawyer, I understand its flaws and inconsistencies, as well as its benefits and strengths. This paper seeks to address the system’s approach to epistemology and how status, rather than facts, can be more determinative of conviction.

The "System"

Conviction in this country results from a jury of our peers believing beyond a reasonable doubt that the accused committed the crime. Rules of evidence control what factors the jury can consider, and the judge manages the courtroom and case to make sure the defendant receives a fair hearing. However, the possibility of a false conviction will never be eliminated. In fact, the possibility of someone being convicted for a crime they did not commit is much higher than one would care to believe (see Baye's theorem).

Inherent Imperfection

One of the inherent imperfections in the system that allows for false positives is the human’s inability to truly know the facts of the case. As noted in the FRANK paper, there is no mortal way to perfectly translate the true facts into the consciousness of a juror. As humans we are unable to know what actually occurred, and instead rely on how the story is portrayed through witnesses and evidence. We then interpret the information through our filters and schemas, resulting in a solipsistic determination of truth instead of universal truth. Thus there is always a possibility of jurors wrongly convicting an innocent.

The Risk We All Run

The risk of being framed or being at the wrong place at the wrong time applies to everyone subject to the jurisdiction of our justice system. In the infinite possibilities of occurrences, there exists one circumstance where any person could possibly be indicted for a crime. However, even though we are all subject to the same possibility of being wrongly accused, we are all not equally equipped to prove our innocence.

A Real World Experiment in "Justice"

Imagine two people wrongly accused of the same crime. Both face the same evidence and witnesses, and both with equally strong alibis. In a perfect system, both would be given the same punishment, whether deserved or not. However, in our society, a number of externalities will likely lead to divergent results.

Some of the most important factors that can lead to different results include wealth, race (both defendant and victim), and community.


The first factor, wealth, seems the most obvious. Assuming I am wealthy and I am indicted for a crime, I will be able to hire the best defense team, bring in the best experts, and provide the most expensive evidence to prove my innocence. A person relying on the public defender system, however, will inevitably present a different case. Their lawyer will be overworked, less qualified, and with less resources to prove his innocence.

What is this "less qualified" crap? Who told you, and what constitutes qualifications?


Race is the hardest to prove but probably the most important factor in a jury unconsciously determining guilt. I understand this topic can be an emotional issue, and I do not mean to offend anyone when I attempt to dissect it. However, I strongly believe intelligent and respectful dialogue is necessary to understand and fix a legitimate social problem.

I'm not sure how what you are saying could be construed as helping to fix a problem.

I don’t consider myself a prejudiced person, but I sometimes find myself thinking thoughts which could be construed as “racist”.

So why shouldn't you begin thinking of yourself as a "prejudiced person"? Obviously there is some reason other than that you don't want to think of yourself that way, right? So is it that you think your implicit biases are slight? Or that you are successfully correcting for them? Or that implicit biases and the occasional racially antagonistic thought don't amount to prejudice? What would you do if you concluded that you were actually a prejudiced person? Would you try to change, or would you accept the fact and resolve to ignore/proclaim/hide it?

These same attitudes pervade the typical juries in this country, and skin color undoubtedly plays a role in determining guilt or innocence.

You have very little confidence in juries, apparently. Do you actually think that, although you're an unprejudiced person, skin color would "undoubtedly" play a role in determining whether you voted for conviction or acquittal of a criminal defendant? (If so, I don't understand why you don't call yourself a prejudiced person, as that would be a literal example of prejudice.) If you wouldn't understand your oath as a juror to permit such behavior, why do you think other people would?

As a middle class white person with a JD from Columbia Law School, I stand a much better chance at avoiding conviction than my black neighbor who has not been provided the same opportunities.

White skin privilege has sometimes been known to run out in front of urban juries, who may not appreciate your invulnerable social position quite as much as you do. See, as you would say, Tom Wolfe's Bonfire of the Vanities.

The Supreme Court even recognized the disparity in McCleskey v. Kemp, but ruled there is nothing unconstitutional about general community attitudes favoring one race over another (it is only unconstitutional if it can be proven discrimination was directed at a specific case).

That's a somewhat inflammatory and not very accurate summary of Justice Powell's opinion. You will recall, I'm sure, that the evidence presented in McCleskey, assembled by David Baldus, showed no substantial effect on the frequency of the death penalty from the race of the defendant: perhaps Georgia jurors were not quite as undoubtedly pervaded as you suggest.

What Baldus did show, however, was that the race of the victim accounted, in a statistical sense, for roughly as much of the death penalty frequency as whether the defendant had a prior felony conviction. The Court said that such evidence of disparate impact could not be used to attack the Georgia sentencing scheme without a showing that there was intentional racial discrimination in particular juries, because actions predicated directly on the 14th amendment require a showing of intentional discrimination, and each jury is a unique decision-maker assembled independently of all other juries.

Much is wrong with that opinion, and I still very much regret that there is no Marshall dissent. But your way of describing the holding does Justice Powell a disservice.


The last factor refers to a defendant’s ability to rely on the community for help. If I was wrongly indicted for a crime, I could call any number of lawyer family friends for advice and counseling on how to approach the issue. I may know a friend willing to represent me for free,

If you find yourself in criminal trouble, don't take free advice from family friends. Don't have a friend represent you for free, and not for not-free, either. Don't mix any emotional connection of any kind with the business of defending you. If you break any of those rules, you'll wind up very very sorry.

or be referred to a specific lawyer specializing in an area relevant to my crime. I would have family and friends to support me, giving me hope while I deal with the issue. Basically, the community would have my back, and I would not have to go to trial alone.

On the other end of the spectrum, there are individuals with little to no community support. Many people do not have reliable family or friends, and are indeed very alone in this world. Their ability to fight the system would be severely diminished, and they stand a much worse chance at beating the charge.

Maybe that's true, and if it is, there should be some evidence for it. You seem to be reasoning as though cases mostly go to trial, when of course cases overwhelmingly are settled by negotiated disposition. All your talk about how you're going to hire the dream team and wow them at the trial may not bear much relation to what happens when the day really comes.

What Can be Done?

These simple variables play an unbelievably important role in whether or not an individual is wrongly (or sometimes rightly) convicted.

Now you're concluding, without having actually ever introduced a single fact in favor of this assertion. When someone tells me something is "unbelievably important" on no evidence whatever, I am pretty sure I know who's unbelievable. You said of these three "simple variables" that one was "obvious," another was "undoubted," and you then made a factual assertion without any proof as to the third.

And I am sure there are many more which are less obvious but equally significant. Unfortunately, I cannot think of many realistic solutions to the problem they present. The goal of the legal system is not parity in conviction, but giving each person an opportunity to prove his or her innocence.

Excuse me? Since when do defendants have to prove their innocence?

The government is restricted by the Equal Protection Clause from providing a specified class of people a less stringent burden of proof.

An obvious statement. So?

The only way to be completely certain of not wrongly convicting any person would be to convict no one (In terms of a statistics test, Beta=1.0)

Which is a fancy way of not saying anything everyone doesn't understand.

One of the only ways to fight the disparity is for jurors to consider the aforementioned factors when determining guilt. By ignoring them, the legal system essentially puts certain classes of people at a disadvantage.

What does "considering" the wealth of a defendant do? Who is supposed to introduce evidence of the defendant's wealth, and why? What would "considering" race mean and how can you justify treating it as evidence? Evidence of what?

Your conclusion bears no logical relation to the unproven case that precedes it. Substantive editorial revision of the presentation of the ideas and the transitions in the essay is necessary.


Webs Webs

r6 - 13 Jan 2012 - 23:14:22 - IanSullivan
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