A HORRIFYING HYPOTHETICAL
I have posed the question to friends and colleagues: If you had to decide between two horrifying scenarios, what crime would you rather be wrongfully convicted of; mass murder, or molestation?
Consider this hypothetical carefully…. “wrongfully convicted of”…. “mass murder or molestation.”
A wrongful identification by eyewitnesses or perhaps even DNA (which is fallible since the application of proof is based on human interpretation …which itself, is becoming notoriously fallible) could lead to a wrongful conviction of mass murder. But what does it take to be accused…. and convicted of molestation? It takes the words or conduct of a child. Even a child who may not be competent to testify. Or a disabled person, if someone else believes that molestation occurred and the “proper authorities” are contacted.
Naive citizens in our society sometimes subject themselves to prosecution by a harsh, unrelenting judicial system. Grandparents, priests, teachers, caregivers of all types are increasingly victimized by a prosecutorial system that often is indifferent to the truth. It is an adversarial system, after all. And those with the power, are wont to flex their muscles.
To level charges against a citizen, a prosecutor need only have “probable cause” to file a complaint. Often a prosecutor will convene a grand jury, and through a form of unilateral theater, convince the grand jurors that probable cause exists to charge a person; and then a complaint will issue and be filed.
Clearly, a prosecutor is not bound by the same duties that they are bound by when before a trial jury. The burden of proof for prosecutors before a jury is to prove the elements of a crime “beyond a reasonable doubt.”
RULES OF CONDUCT FOR PROSECUTORS
The ABA (American Bar Association) has special rules for prosecutors that spell out their duties. The California Rules Of Professional Conduct are currently under revision to adopt these rules.
The first duty mandated by the ABA code “special rules for prosecutors” is that a prosecutor must “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”
“Probable cause” is all that it takes to drag a citizen into the legal process. Probable cause requires “suspicion” and some “articulable facts.” This means, that if you are “suspected” of a crime; and a police officer, or even a “confidential informant” (aka: snitch); or a child or a disabled person; provides some “articulable facts,” this is enough to bring charges.
And, as mentioned in a previous blog entry, these charges are a matter of perspective….. a perspective that is colored by the charging prosecutor’s personal ambitions. As most readers may know, most prosecutors hope to become judges…. this is the core reason why most young lawyers join the District Attorney’s Office. And, correspondingly, why most judges are former prosecutors.
Know also that “articulable facts,” like all “facts” are subject to personal perspective of the observer. In some cases it may be the perspective of an overzealous police officer; or even more consequential, the perspective of a child, or disabled person, who may have little to no ability of understanding how their emotional states could color their perception of reality; i.e. the “facts” upon which the charging document relies. Consider that all of us, even those who consider themselves very rational-minded, are all “victims” of our own confirmatory biases.
PROBABLE CAUSE IS NOT MUCH MORE THAN SUSPICION
“Suspicion” is what justifies a search and seizure at the airport or at the border. This is the lowest burden of proof, and is justified because of the strong national interest in protecting a country’s borders. This intrusive tool is used daily on your average citizen, and sometimes it is used to investigate a politician that may have been targeted by certain interests. Here is an example of where a mayor of a small city is being investigated through the use of this tool. More on this here.
So to all the parents, grandparents, and caregivers of all types: do not stop loving those for whom you care. But be aware….. beware…. of the legal consequences that may occur to those who are naive. Since as the old cliche goes: “Ignorance of the law is no excuse.” (Unless of course you are a police officer.. but that is a subject for another time [or blog])
Educated awareness is the key to survival in our complex and aggressive “judicial” system.