When I attended law school in San Francisco, my two favorite classes were Constitutional Law and Comparative Legal Systems. The former taught us about the foundations of our American legal system, and the latter taught us about the various alternatives. My fellow students and I fought against our American myopia and hubris that led us to think that the American way was not just the “best” way to organize a society but the “only” way to do it … correctly.
A seminal moment in our Comparative Legal Systems class came when our professor, who was visiting from Italy, started with a well-established principle:
“A society’s legal system is a codification of its morals.”
United States v Japan
He gave the two counter-examples of the U.S. criminal justice system versus the one in Japan.
He walked us through some of the familiar foundations of our American system:
Presumption of innocence and burden of proof
Right against self-incrimination
Due process rights, including probable cause, right to counsel, and jury trial
He then walked us through some of the foundations of the Japanese system, which I do not remember today except that they were the exact opposite of ours. As I recall, he mentioned that every complaint had to be investigated, every investigation had to render an arrest, and every arrest had to be prosecuted, and during the trial there was a presumption of guilt and the burden of proof was on the defendant to convince the judge or jury that s/he was innocent, all without a right to be represented by legal counsel.
My fellow students were appalled by the Japanese system. It seemed absolutely barbaric.
Then our professor gave us some sobering statistics to consider: at the time, the U.S. had the highest violent crime rate in the world, and Japan had the lowest. He asked us again to think about which system was more “barbaric.”
He explained that the two systems were complete opposites precisely because the two societies had been built using completely opposite moral codes. As he put it,
“In the U.S., we would rather let 99 guilty people go free than wrongfully incarcerate a single innocent person, whereas in Japan they would willingly wrongfully incarcerate 99 innocent people if it meant ensuring the conviction of every single guilty person.”
The U.S. was founded with total apprehension against a tyrannical government, so we instituted societal pillars to protect every individual’s personal liberty. On the other hand, in Japan, to paraphrase Star Trek, the needs of the many outweigh the needs of the few (or the one), so individuals gladly sacrifice certain freedoms to ensure the success and safety of the entire society.
Cornell University Sexual Assault Case
Why am I writing about this today?
I believe that most Americans forget the pillars of our criminal justice system and why they exist in the first place, especially when they read certain news stories about heinous alleged crimes, like the recent sexual assault at a Cornell University fraternity house.
In order to protect every American from spurious criminal prosecution by an overzealous government (a District Attorney at the state level or a U.S. Attorney at the federal level), a key cornerstone of our American system is that every defendant is presumed innocent until a judge or jury reviews legally admissible evidence during a proper court proceeding and finds that this evidence proves every element of the crime beyond a reasonable doubt. Moreover, there is absolutely no obligation for a defendant to actually defend themselves, to testify, or to present any evidence of innocence. If the prosecutor fails to meet their burden, then the presumption of innocence holds, and the defendant is acquitted.
We also have to keep in mind that the victim is not actually a formal party to the legal proceedings. In a criminal case, the defendant is prosecuted by the government. The victim is merely a witness, and even then only if the prosecutor decides to call them to testify.
If we think about why our system was set up the way it is, it makes sense that we made it incredibly difficult for anyone to actually be convicted of a crime in this country.
Also, since the government is the prosecutor, the government is funded by taxpayer monies, and the government’s budget is finite, the prosecutor has a fiduciary obligation to safeguard the taxpayer funds by being extremely selective on what cases they choose to prosecute. This is also why so many prosecutions are resolved via plea agreements rather than going through the presentation of evidence at trial.
Again, why am I writing about this today?
Without making any commentary on specific facts or taking any position on any particular case, I feel the need to remind everyone that our system does, in fact, require the government prosecutor (presumably advocating on behalf of the victim) to prove every element of the crime beyond a reasonable doubt, and this includes the sexual act, the intent of the attacker, and the lack of consent. This is not “victim-shaming”; it is the law, and the very core of our American legal system.
Until and unless the government can provide evidence to prove each of these elements beyond a reasonable doubt, the defendant must be presumed to be innocent. In other words, until proven otherwise, we have to assume that (a) no sexual act occurred, or (b) the defendant did not intend to commit the sexual act, or (c) the sexual act was consensual.
I am the father of a daughter, so if anything like this ever happened to her I would hope that the perpetrators would end up in prison for the rest of their lives. However, I am also the father of two sons, who I believe were raised well enough to never get themselves into this type of situation. If they did, I would hope that the entire government apparatus would be held to the highest standards in conducting their duties without violating my sons’ constitutional rights.
Certain crimes are so egregious that our natural knee-jerk reaction is revulsion and a desire to punish the perpetrator. This happens with sexual assault, but also with homicide, pedophilia, and terrorism, among others. However, we have to fight that knee-jerk reaction.
For the good of our society, we have to remember that we put certain safeguards in place specifically to protect us from unfounded government prosecutions and also from individuals taking the law into their own hands via vigilante justice. We chose the rule of law, and, in fact, we actively evangelize it in countries around the world.
Conclusion
During my time on active duty as an officer in the U.S. Marine Corps, I served 18 months as Senior Defense Counsel on our base. As with all criminal defense counsel, our primary responsibility was not necessarily to prove our clients’ innocence but rather to make sure that they got a fair trial and that the government honored our clients’ constitutional rights to due process. We were there to protect our clients against powerful government prosecutors, and we took our responsibilities seriously, because they form the core of our American society and reflect our founding principles and morals.
Perhaps this is why I am so protective of defendants’ rights.
Those legal safeguards are a codification of our country’s morals, and they are one of the defining characteristics that sets the U.S. apart from so many other countries. Yes, they lead to situations that often make my blood boil, because I would love nothing more than to personally dole out punishment against the defendants. However, in those cases, I have to re-focus on the bigger picture and remember that, when it comes to America’s criminal justice system, we have to take the bad with the good.
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I will likely write a future piece about the modern conflict between the First Amendment right to freedom of expression and the various protections in the Fourth, Fifth, and Sixth Amendments, among others.
In the meantime, I am curious to read your thoughts and comments on this issue.
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