In Patrick O’Brian’s The Reverse of the Medal, one of the novels in his brilliant Aubrey-Maturin series set during the Napoleonic wars, one of the main characters winds up being prosecuted for insider trading. Jack Aubrey, a heroic naval captain, is completely innocent — but the evidence against him looks bad, he’s up against a win-at-all-costs prosecutor, and the judge is a mean sonofabitch. His solicitors have just retained a top-notch barrister to represent him. The following exchange between Jack and his friend Stephen Maturin is something one might hear in lawyers’ offices even now:
“It appears that Mr Lawrence is a very clever lawyer indeed, and I suppose I should be glad; but upon my word I cannot see that I want a lawyer at all. […] This affair is nothing like those miserable [civil cases], with innumerable obscure points of disputed contract and liability and interpretation that have to be dealt with by specialists; no, no, this is much more like a naval matter, and what I should like is simply to have my say, like a man called before his captain, and tell the judge and jury just what happened. Everyone agrees that there is nothing fairer than English justice, and if I tell them the plain truth I am sure I shall be believed. I shall say that I never conspired with anyone, and that if I followed Palmer’s tip I did so with a perfectly innocent mind, as one might have followed a tip for the Derby. If that was wrong, I am perfectly willing to cancel all my time-bargains; but I have always understood that guilty intent was the essence of any crime. And if they confront me with any man who says that what I say is not true, why then, the court must decide which of us is to be believed — which is the more trustworthy — and I have not much fear of that. I have every confidence in the justice of my country,” said Jack, smiling at the pompous sound of his words.
“Have you ever been present at a trial?” asked Stephen.
Jack’s is a common misconception, that the criminal justice system is nigh infallible, and that innocence will out. Those who have actually had some experience with the criminal justice system, however, are more inclined to share Stephen’s skepticism. Injustice happens with alarming frequency, in real life. Evidence is falsified, words are twisted, mistakes are made. Juries are unpredictable, hamstrung and sometimes foolish. Lawyers miss issues, miss facts, and miss deadlines. Prosecutors abuse their discretion or fail to use it. Innocents are convicted by reliance on the unreliable. Innocents convict themselves by plea, rather than take the risk of greater penalty should they lose at trial. The criminal justice system is predisposed towards punishment; once caught up in the system, whether innocent or guilty, the chances of being punished are significant.
We’re not all monsters in the system, of course. For the most part, the judges and prosecutors and defense lawyers are just regular folks trying to do the right thing. But people are fallible. Judges may have a very different idea of what is “fair,” and may be too trusting of police witnesses. Prosecutors may become too much invested in a case to be able to see what is just, or may be so overwhelmed that they resort to general policies rather than consider individual circumstances. Defense lawyers can be zealous in counterproductive ways, or not astute enough to see a way out. The system is full of human beings, with human failings.
And everyone is well aware that most people who get caught up in the system will never come back again. Their one contact with the criminal justice system is their last. Either they’re scared straight, or they really aren’t the kind who go around committing crimes in the first place, or there was a mistake. Whatever the reason, nobody is worried that they pose any future threat to society. When that first arrest doesn’t involve a serious crime, there’s really no call to even go down the road towards punishment in the first place. So there are consent decrees and adjournments in contemplation of dismissal and non-criminal pleas and other ways to weed these normal people out of the system before it crushes them.
But for those charged with serious crimes, they’re going to have to fight if they want to establish their innocence.
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That’s not a typo. The accused is going to have to fight to establish his innocence. Forget about the presumption of innocence — that only applies to juries, and it’s debatable whether jurors actually truly begin their deliberations after a trial with any such presumption. The prosecution already thinks he did it — or at least thinks that they can prove he did it. That’s why the charges were filed in the first place. Left to its own devices, the prosecution is not going to suddenly change its mind.
Instead, the accused is going to have to persuade the prosecution either that it got the facts wrong, or that it’s looking at the facts in the wrong way. The accused is going to have to fight to get evidence thrown out that is inadmissible, unreliable or improperly obtained. If all else fails, the accused is going to have to challenge the prosecution’s evidence at trial, and perhaps put on his own evidence. Innocent or not, the accused is going to have to overcome the presumption of guilt. That’s just the way it goes.
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Fighting it means retaining counsel to do your fighting. Someone who can spot the important issues, who can make the necessary pitches motions and arguments, who can build up your side while weakening the other side. And lawyers cost money. So regardless of whether you are innocent or not, you are going to have to incur the cost of legal counsel.
“But that’s unfair,” cry the Jack Aubreys of the world. Why should they be burdened with the cost of a defense, when they’ve done nothing to deserve it?
It is unfair. In a perfect world, a person who did not commit a crime should not have to endure the cost of defending against a false charge. But in the real world, such things do happen. The chance of having to incur legal costs is a risk that everyone assumes as part of the cost of living in a modern civilized society. It’s as simple as that.
That’s pretty much the rationale behind the “American rule” in civil law, where each side pays the costs of their own legal representation, as opposed to the “English rule” where the losing party has to pay the other side’s fees. The American rule is based on the idea that legal fees are just a cost of doing business, a cost of living.
Opposition to adopting a loser-pays rule tends to be based on different factors, however, such as not wanting to discourage people from trying to enforce their rights out of a fear that the fallible system might fail them.
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Well, what if we adopted a form of loser-pays system in criminal cases? Where, if the defendant is acquitted or the case is dismissed, the government would have to pay the defendant’s legal fees?
It would be a disaster, that’s what.
Prosecutors would be under enormous pressure not to dismiss cases or give breaks, because it would blow the budget. Prosecutors would be under enormous pressure to win at any cost, rather than seek justice. Meanwhile, the guilty would be charged less often, when a guilty jury verdict wasn’t a foregone conclusion. Everyone would suffer.
So it’s not likely to ever happen. Don’t get your hopes up.
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If you’re charged with a crime you didn’t commit, the best you can hope for is a dismissal or an acquittal. Getting there is going to be an expense. It’s not right that you should have to be saddled with that expense, just as it’s not right that you were charged in the first place. It’s a bit of bad luck, an unexpected circumstance you now have to deal with. Life is full of such things. That’s why people work hard to make more money, or put some aside for a rainy day, buy insurance and the like — so they can afford to deal with such things when they happen.
It’s not fair. But it’s only one part of the larger unfairness of being charged with a crime you didn’t commit. It may be a mistake, it may be bad luck, it may even be deliberate enemy action, but it has happened to you. And you’re the one who now must deal with it.
