Here it is in toto with my comments in blue.
"This case [is] about seeking justice for Caylee . . . ." So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.
A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That's because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.
Dershowitz is making an important point, but I wonder if his formulation isn't untenably extreme. The important point is that a criminal trial can issue in the correct result whether or not justice is achieved for the victim. If the correct result is an acquittal, then of course there is no justice for the victim in that trial. But if the correct result is a conviction, then there is justice for the victim in that trial. So why does D. say that a criminal trial is NEVER about seeking justice for the victim? It seems to me that what he should say is that a criminal trial is not first and foremost about seeking justice for the victim, but about making sure that the defendant is not wrongly convicted. Surely D. does not want to suggest that criminal proceedings have nothing to do with justice.
The glory of our system of justice is the (defeasible) presumption of innocence: the accused is presumed innocent until proven guilty. This puts the burden of proof in a criminal trial where it belongs, on the state. The prosecution must prove that the defendant is guilty; the defense is under no obligation to prove that the defendant is innocent. In a criminal proceeding all the defense has to do is raise a reasonable doubt as to the guilt of the accused.
This is not well- or widely-understood. Did you see The O'Reilly Factor last night? The sweet Laura Ingram, who has been to law school, couldn't get through to the pugnacious and pig-headed O'Reilly. He seemed not to understand the bit about presumption of innocence and burden of proof, nor did he seem to appreciate that the probative bar in a criminal trial is set very high: the accused must be shown to be guilty beyond a reasonable doubt and not merely by a preponderance of the evidence.
A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.
Yes indeed.
Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.
This is basically right, but it should be pointed out that 'reasonable doubt' is a vague phrase. It would seem that at some point the probability that the defendant committed the murder would be so great that it becomes unreasonable to doubt that the defendant did it. Or is Dershowitz claiming that certainty is required for a legally proper conviction?
Ask yourself whether the following scenario would raise a reasonable doubt. Jones is charged with murder. His defense is that he has an identical twin brother who was kidnapped at birth but has recently surfaced in order to pin the murder on Jones. No one is able to cast doubt on Jones' story: the defendant's parents are dead, the birth records were lost or stolen, etc. There are credible eye witnesses that testify under oath that they saw Jones do the dastardly deed. But what they saw, of course, is consistent with the identical twin's having committed the crime. (Example adapted from James Cargile, "On the Burden of Proof," Philosophy, January 1997, p. 77)
This scenario shows, I think, that it is not certain that Jones did the foul deed. But ought this defense raise a reasonable doubt? I would say no. It is just too far-fetched and improbable. So certainty cannot be required for a conviction. If so, then probability would seem to be relevant, contrary to what Dershowitz claims.
For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham's argument with God about the sinners of Sodom.
Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were 10 or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were 10 righteous. From this compelling account, the legal standard has emerged.
That is an important point that those who wish to suppress every vestige of our Judeo-Christian heritage ought to think about.
That is why a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.
Again, this strikes me as an extreme way of putting an otherwise excellent point. Does the good professor mean to suggest that there is no search for truth in a criminal trial? And does he really want to suggest that proof and truth have no relation one to the other? Does he think that proof beyond a reasonable doubt does not make it more likely than not that truth has been reached?
A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a preponderance of the evidence. In other words, if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard.
That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found O.J. Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue Casey Anthony civilly, a Florida jury might find liability.
Exactly right.
Casey Anthony was not found innocent of her daughter's murder, as many commentators seem to believe. She was found "not guilty." And therein lies much of the misunderstanding about the Anthony verdict.
True, she was found 'not guilty.' That is the correct terminology. And to be found not guilty is not the same as to be innocent. The misunderstanding of some commentators is to think that being found not guilty is an affirmation of the defendant's innocence. The finding of 'not guilty,' however, is nothing more than the judgment that the evidence for conviction was insufficient, that the defendant was not proven guilty beyond a reasonable doubt. That is of course consistent with the defendant having committed the crime with which she is charged.
This misunderstanding is exacerbated by the pervasiveness of TV shows about criminal cases. On television and in the movies, crimes are always solved. Nothing is left uncertain. By the end, the viewer knows whodunit. In real life, on the other hand, many murders remain unsolved, and even some that are "solved" to the satisfaction of the police and prosecutors lack sufficient evidence to result in a conviction. The Scottish verdict "not proven" reflects this reality more accurately than its American counterpart, "not guilty."
'Not proven' is actually a better and more accurate phrase.
Because many American murder cases, such as the Casey Anthony trial, are shown on television, they sometimes appear to the public as if they were reality television shows. There is great disappointment, therefore, when the result is a verdict of not guilty. On the old Perry Mason show, the fictional defense lawyer would not only get his client acquitted but he would prove who actually committed the murder. Not so in real life.
The verdict in the Casey Anthony case reflected the lack of forensic evidence and heavy reliance on circumstantial inferences. There was no evidence of a cause of death, the time of death, or the circumstances surrounding the actual death of this young girl. There was sufficient circumstantial evidence from which the jury could have inferred homicide. But a reasonable jury could also have rejected that conclusion, as this jury apparently did. There are hundreds of defendants now in prison, some even on death row, based on less persuasive evidence than was presented in this case.
Juries are not computers. They are composed of human beings who evaluate evidence differently. The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and introducing questionable evidence, such as that relating to the "smell of death" inside the trunk of Casey Anthony's car.
The defense also made mistakes, particularly by accusing Ms. Anthony's father of sexually abusing her. Although they leveled this unfounded accusation in an effort to explain why Casey had lied, it sounded like the kind of abuse excuse offered to justify a crime of violence. But a criminal trial is not about who is the better lawyer. It is about the evidence, and the evidence in this case left a reasonable doubt in the mind of all of the jurors. The system worked.
The following passage from Concluding Unscientific Postscript embodies a penetrating insight:
. . . the legal authority shows its impotence precisely when it shows its power: its power by giving permission, its impotence by not being able to make it permissible. (p. 460, tr. Swenson & Lowrie)
My permitting you to do X does not make X permissible. My forbidding you to do X does not make X impermissible. My permitting (forbidding) is justifed only if what I permit (forbid) is in itself permissible (impermissible). And the same goes for any finite agent or collection of finite agents. A finite agent may have the power to permit and forbid, but it cannot have the power to make permissible or impermissible. Finite agency, then, betrays its impotence in exercising its power.
For example, the moral permissibility of killing in self-defense is what it is independently of the State's power to permit or forbid via its laws. The State cannot make morally permissible what is morally permissible by passing and enforcing laws that permit it. Nor can the State make morally impermissible what is morally permissible by passing and enforcing laws that proscribe it.
Here below Might and Right fall asunder: the powerful are not always just, and the just are not always powerful. But it would be a mistake to think that the mighty cannot be right, or that the right cannot be mighty. The falling asunder is consistent with a certain amount of overlap.
Power does not confer moral justification, but neither does impotence. (For example,the relative weakness of the Palestinians relative to the Israelis does not confer justification on the Paestinian cause or its methods.) See The Converse Callicles Principle: Weakness Does Not Justify.
The State is practically necessary and morally justifiable. Or so I would argue against the anarchists. But fear of the State is rational: its power is awesome and sometimes misused. This is why the State's power must be hedged round with limits.
We don't know whether or not God exists. But we do know that nothing is worthy of being called God unless it is the perfect harmonization and colaescence of Might and Right, of Power and Justice, of Will and Reason.
Tough questions: Could such a transcendental Ideal (in Kant's sense) be merely a transcendental Ideal impossible of existence in reality? And could anything impossible count as an ideal? But if God is possible would he not have to be actual?
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