Pretty Sure?

When our founding fathers put together this document they obviously decided to provide due process rights to anyone accused of committing a crime.  The Supreme Court later affirmed that one of these due process rights was that criminal prosecutions against the defendant must be “beyond a reasonable doubt”.  Within the scientific and legal community there are a variety of standards of proof that are required to make ones argument and obviously the higher the standard, the more credence is given to the assertion.  In medieval Europe for example, when an claim of witchcraft (as a criminal offence) was made against someone, the burden was on the accused to prove themselves innocent regardless of the evidence (if any) that was presented against him.  In the family of physical sciences, the scientific method has become the standard for proving and disproving theories.  Within civil trials the burden of proof required is that the plaintiff must prove their case by a “preponderance of the evidence”.  This means that approximately 51% of the plaintiff’s case must be proven by their evidence to the judge or jury to obtain a judgment against the defendant.  I would compare that the threshold of “beyond a reasonable doubt” is equalivent to about 70% to 80% of the full threshold possible.  Some believe that this threshold may be a numerical figure wither higher or lower than that while other scholars insist that the exact numerical figure can’t be exactly quantified.  Whatever the case we can all agree that this threshold is still less that the full 100% of absolute fulfillment.  This leaves remaining undetermined threshold permits a margin of error in criminal law that I argue should be closed.

I make this argument because of the philosophical nature that humans are not perfect in their characteristics or decisions, obviously invoking the need for a criminal justice system.  Over the past decade, within our criminal justice system there have been various political or legal action efforts most notably the Innocence Project, as well as efforts by Amnesty International and the American Civil Liberties Union that have in their own endeavors proven the transgressions of our criminal justice system.  The national Innocence Project has confirmed a minimum of 280 cases of which innocent defendants had their convictions overturned by DNA based evidence though his number continues to increase as their mission continues.  Many of were on death row prior to their exonerations.  This means that the prosecutors of the state attempted to murder an innocent civilian and these are just the ones that we know of, so imagine for just a moment all of those that we don’t know about.  Statistics from the Innocence Project provide estimates that if just 1% of prisoners in United States prisons are innocent of their convictions, then that would mean that more than 20,000 innocent people are in prison.  To say that humans are even 99% infallible (especially lawyers) will lead one to stumble over a very large brick of hubris into the pit of naivety.   In many cases there is not the magic of DNA testing that can conclusively determine innocence and so the exact extent of the failure of our police and prosecutors may never be known.  Other exonerations have happened as a result of perjured testimony, state misconduct, false confessions, and a host of other factors and causes.  Most recently in Texas, Anthony Graves did not have the benefit of DNA testing and many prosecutors even go as far as to fight exonerations.  Very recently in Williamson County, Texas the former district attorney fought the Innocence Project’s efforts to obtain DNA testing on behalf of inmate Michael Morton.  Those tests later exonerated Mr. Morton of the murder of his wife and led to accusations of prosecutor misconduct dating back to the original trial in the 1980s.   When we have a system that clearly is replete with error and prosecutors attempting to conceal error, it is obvious that this system is not working.  We need to stop this madness before it starts and decade’s later ends up costing millions and ruining lives. 

Referring back to the original history lesson from earlier, we must tack careful notice as to what circumstances this new government was formed in.  With the eighteenth century Europe and later North America were in the mist of the Industrial Revolution.  The Industrial Revolution began in Europe after the Renaissance and later spread to the rest of the world.  This brought with it many inventions and innovations that could not have even been imagined centuries earlier.  In the time of the American Revolution many of the delegates to the Constitutional Conventions represented the wealthiest elite of society and rarely venture more than a hundred miles from their homes.  In this world travel was conducted by horse pulled wagon carriages across dirt back roads and communication was done by a postal system in infancy that consisted of horseback curriers delivering letters in a process that took weeks.  Within this society, criminal trials often consisted of witness testimony and little if any scientific evidence.  I would propose that this is the reason that the stand of proof “beyond a reasonable doubt” was used because that was the best that they could do in the eighteenth or nineteenth century America and still maintain some state of order at least as far a criminal justice was concerned.  The best that prosecutors had to work with during this time for felony murder cases was maybe a corpse or weapon and witness statements.  The witness statements were often the byproduct of society amounting to the “he said, she said” as immature accusations and often difficult to corroborate.  Harper Lee’s masterpiece To Kill a Mockingbird is a perfect example of this as racial discrimination, gender discrimination and other primitive injustices hijacked the integrity of witness statements.

By comparison today we live rather comfortably, with automatic coffee makers, big screen high definition television sets, smartphones that allow us to be connected anywhere to anyone and a whole other host of technological innovations that could have never been imagined centuries ago.  When James Madison drafted the Bill of Rights for us he could not have even began to imagine all the technology that would later come forward to test his standard on probable cause and searches including surveillance cameras, electronic online banking, e-mail or Facebook.  The reality of the world that we live in today is that with the technological innovations and current resources at our disposal, we can do so much more than we could have centuries ago.  Indeed most parents want their children to achieve goals that exceed their own generation’s abilities and continue the chain of progress with their children.  Each generation thanks to the product of more sophisticated medical technology has a longer life expectancy than the generation before it.

  We should also have the same attitude of progression toward our pursuits of criminal justice always striving to do better than the generation before us.  Today during criminal trials prosecutors and police have an enormous amount of investigative resources not available in generations before including police radios, media channels, fingerprints, criminal electronic databases, computer forensics, ballistics, gunshot residue testing, DNA testing, surveillance cameras, voice recordings, space satellites, Amber alerts and cell phones.  I argue that since the state now has the ability to do so much more shouldn’t they be held to a higher standard that before?

Earlier I made the assertion that we should have another amendment to our United States Constitution passed.  I propose that amendment should be to raise the burden of proof in criminal prosecutions from the current standard of “beyond a reasonable doubt” to “beyond complete doubt”.  This would close the margin of error in criminal prosecutions earlier referenced and likely prevent many wrongful convictions.  This new standard of proof would be consistent with our current scientific abilities and the jury in criminal proceedings would have the personal satisfaction that the defendants sent to prison were proven to be 100% guilty by the most recent scientific evidence possible.  This would also ensure that innocent defendants are acquitted and that police and prosecutors must better utilize the resources at their disposal to present the best possible case to a jury.  It would be more difficult for a prosecutor to bully an innocent defendant into a plea bargain and also give defense attorneys a more level playing field.  This would be a huge blessing to the defendants having to pay out of pocket for counsel or having substandard counsel provided by the court going up against all of the mass resources described earlier available to the state.

There is one major party to the criminal justice system that believes that they would not immediately benefit from this change.  The district attorney and their lieutenants working for the state will find it more difficult to obtain a criminal conviction at a trial.  They must completely prove their theory of factual guilt to a jury to obtain a conviction.  This will also make it more difficult for prosecutors to bully and threaten defendants into plea bargains and ensure that only the factually guilty defendants will be prosecuted.  Employees of the state will object to this because it does not serve their diluted and sadistic needs or goals.  The purpose of this is to serve the interests of justice and not the state. 

Most law students are taught to old saying by English Jurist William Blackstone that “it is better serving justice to let ten guilty persons go before convicting just one innocent”.  Indeed the intent of our system and rights is to ensure the protection of the innocent and serve justice.  Today that mindset seems to have been disregarded by mainstream American citizens (the most conservative of which tend to make it through voir dire and serve on juries) as they have bought the metaphor that one has to scramble eggs to make and omelet.  They are perfectly accepting of this so long as they or their loved ones are not one of the eggs to be broken.  This means that many American citizens are willing to deliberately convict (and worse) to their innocent countrymen to punish the guilty.  Their limit of empathy is that they are willing to subject their neighbors to a fate that they would not consider for themselves. 

This is the same behavior that many sadistic psychopaths in history have become famous for.  Herod was so obsessed in destroying the baby Jesus that he had the remaining infants (about 20-25 given the population statistics of that time) in the geographic vicinity of Bethlehem slaughtered.  While the infant Jesus did not have much of a rap sheet, suppose in his stead we place the local pedophile or serial killer.  Is such a sacrifice of even a single innocent life acceptable in the course of punishing those we deem evil?

We need to close the gap in our burden of proof from “beyond a reasonable doubt” (here in Texus we call it purty sur) to beyond complete doubt to make sure that innocent are protected while we administer justice professionally and accurately. 

Charles Lee Baird
charlesleebaird@rocketmail.com