I am incredibly excited about Donald Trump’s criminal trials. I love our criminal justice system, usually from my perspective as a defense attorney. But this time I’m part of the indignant public whose desires I so often disdain as inferior to the ideals of our defendant-protective Constitution. So, it has been intriguing for me to reflect on how awesome our criminal justice system is, regardless of which side you favor. The long-standing criminal rules, statutes, and constitutional principles are a refreshing break from some of the negative features of politics and social media. I’ll discuss four principles in our criminal justice system that lead to more accurate information than you might see in just any old social media post or news article.
For one, the most extreme voices can be eliminated during jury selection, with both sides having an equal opportunity to remove them. Unlike on social media, where a tiny percentage of people with extreme views drown out the more moderate majority, the most extreme jurors are removed. In fact, any jurors who happened to post extreme things on social media are certain to be off the jury, because the attorneys would easily have found those posts.
Second, there is nothing like “fake news” in a criminal trial. Both sides must have disclosed exhibits and witnesses ahead of time, and thus research by the opposing side can be done to, where possible, disprove falsities before the trial is over. Knowingly providing false evidence can lead to harsh penalties for known witnesses and lawyers (the anonymity so common online is not allowed). And hearsay rules prevent people from sharing false information and blaming somebody who is not in the courtroom for any lack of truth in the evidence. Thus, there is an extremely strong incentive for the evidence to be legitimate.
Third, jurors must listen to both parties, and both sides are fully entitled to challenge every bit of evidence presented by the opposing side. When I was a law clerk, one of my jobs was to pass a note to the judge when I saw a juror seeming to doze off, so that the judge could let them stretch their legs etc. to ensure they were processing the evidence. Of course, there is no guarantee that every juror is as open-minded as he or she is instructed to be, but at least they can’t get all their information from a news outlet that never varies in its attacks/defense of certain people (Trump, as is particularly relevant here). I wish our elections could be more open-minded (in fact, I recently signed a petition for open primaries, which might be a good step, reach out if you are interested). I wonder if our elections would turn out differently if every voter had to listen to both sides like jurors. I certainly don’t have energy after my three little kids go to bed to carefully research both sides of every issue; it’s probably good that jurors aren’t allowed to bring their kids to court.
My fourth and final point is related to but distinct from my third: jurors must listen to and deliberate with each other. Again, no guarantees about open-mindedness, but the judicial and social pressure to discuss all of the evidence creates a decision-making process that is very different from how somebody establishes her position while alone on Facebook or talking with family or friends. Juries include a wide array of perspectives and an obligation to at least talk with each other; in fact, in a serious or complicated case, if a jury were to come back with a verdict too soon, the judge may order that they deliberate longer.
Those are all amazing features of our criminal justice system, and mean that both sides have a fair shot at achieving their goal (conviction or acquittal). And it leads me to have some respect for either outcome given by the jury, even where Donald Trump is involved.
Now, some might say that a conviction, even if fairly proven during the trial, is unfair because he shouldn’t have been prosecuted in the first place since others would not have been prosecuted for the same thing.
Even some anti-Trump folks are concerned that Trump is being prosecuted for things that other people would not be prosecuted for. I’ve read that Reagan and Biden both kept some confidential documents that they probably should not have kept. So prosecuting Trump for the same thing shows that the whole prosecution is a joke, right? Only to the extent that you think most prosecutions are jokes. I would say it is more of the rule than the exception for a criminal defendant to feel unfairly singled out, or to complain that somebody else was not also prosecuted. A man may complain that his wife verbally and even sometimes physically abuses him, and that it’s unfair that he is charged just because she called the police. A parent may complain that only her child was charged with battery, when the other child had been bullying and provoking for months. Several kids may goof off together, but only the kid appearing early in the investigation is charged; later evidence inculpating others may be ignored because the dramatic feelings leading to the initial charge have pittered. Just because the defendant wasn’t necessarily the only one to blame, doesn’t mean there is no case or evidence against their behavior.
Often what matters in the decision to prosecute (unlike with the jury’s conviction/acquittal decision) is whether a victim, or the public generally, creates pressure to do so. Officers often ask victims if they want to “press charges,” a legally meaningless phrase given the victim has no direct decision-making authority in the process, but their voice is practically quite meaningful. It is an appropriate part of the system that prosecutors, who are elected or otherwise highly accountable to the public, use their initial discretion in accordance with public will and respond to public outcry. Clearly, Trump’s behavior has caused an exceptional amount of public outcry, and it is natural that prosecutions have followed.
Fortunately, our court system usually prevents just any prosecution from succeeding, by ensuring the crime charged actually occurred. Then the defendant, if found guilty, will have the opportunity to explain the full situation to the judge, and see if perhaps it persuades the judge to be lenient in sentencing based upon the variety of factors that merit mercy.
What one judge decides as a sentence is not going to affect my overall opinion of Trump much. But I will take a jury’s decision (at least if it is unanimous) as a relatively legitimate piece of evidence that, in that situation, he did or did not break a law, one that the people of New York or Georgia or the U.S. thought to be felony behavior. To be honest, I’m unlikely to be swayed by acquittals to vote for him, though if his main opponent in the election has been found guilty of more felonies than him, I'll be quite open-minded.
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