f/k/a archives . . . real opinions & real haiku

“To American lawyers, a twenty-year-old document is ‘ancient,’ while a seventeen-year-old person is an ‘infant.’ at one time or another, the law has define ‘dead person’ to include nuns; ‘daughter’ to include son, and ‘cow’ to include horse; it has even declared white to be black.”

…. from “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman (Henry Holt and Co., 2007)

There are a lot of words and terms that lawyers use differently than the rest of humanity.  Besides the ones mentioned in the above quote by Adam Freedman, consider: brief, charge, count, party, practice, person, try and real.  Most non-lawyers take these differences in stride and accept the shift in meaning within the legal system or profession.

Nevertheless, there are large numbers of people (including one or two of my aunts) who believe there’s something wrong when a “perp” (the perpetrator who has in fact done the acts charged in an indictment) pleads “not guilty” at his or her arraignment.  They consider a perp’s plea of Not Guilty to be dishonest — a lie — and therefore immoral or unethical (or, for the less judgmental, an unacceptable waste of public resources).  Faced with the following multiple-choice question at his or her arraignment:

How do you plead to the charge?

• guilty
• not guilty
• no contest

these fans of the inquisitional system of justice (where you are forced to answer every question, and to do so truthfully) insist that a perp should admit guilt and face the appropriate punishment.  If the defendant’s lawyer really believes he has a valid legal defense or justification for the seemingly criminal behavior, some of the Inquisitors might permit the defendant to say “not guilty.”  Otherwise, if he in fact did the deeds that amount to the alleged crime, they want him to plead “Guilty.”  It apparently doesn’t matter that in our accusatory system of justice

• the defendant is “presumed innocent” until the State proves his guilt beyond a reasonable doubt.
• the judge has just told the defendant he has three important Constitutional rights: 1) the privilege against self-incrimination; 2) the right to a trial by jury; and 3) the right to confront his accusers;
• the judge will enter the plea of “not guilty” for him, if he fails to respond with one of the allowed answers; and
• to everybody officially involved at court (judge, prosecutor, defense attorney) the term “not guilty” has a far broader meaning than “I didn’t do it”

A few criminal lawyers with weblogs have been discussing this topic at their weblogs the past couple of weeks, starting with Jeremey Richey (ECILCrime, “Is It Ethical to Plead Not Guilty?,” Dec. 20, 2009) and Mark Bennett (defending people, “Justice vs. Fairness,” Dec. 22, 2009), and spreading to Ken Lammers (CrimLaw, “morality and immorality of ‘not guilty’,”Jan. 4, 2009) and Scott Greenfield (“The Two Most Loaded Words in a Courtroom,” Simple Justice, Jan. 5, 2009, where there is even a discussion in the Comment section about the merits of possible substitute phrases).

Mark Bennett has a nice, pithy explanation of the cause of the confusion:

In The World, “not guilty” means “didn’t do it.” Not so in the criminal justice system, where it means, “the government hasn’t proven it.”

• Jeremy Richey insists “It is perfectly ethical [honest] for a person to plead not guilty even if the person believes himself to be guilty as sin,” because he is merely doing what all the players in the judicial system expect him to do — “requiring the government to carry its burden.”  Therefore, “when a person enters a not-guilty plea, he is not being deceptive or dishonest.”
• Ken Lammers says it might be immoral for the defendant to refuse to take responsibility for his criminal behavior, but “Quite simply, the trial system doesn’t care. It is set up to test the government’s ability to prove guilt – not to judge the defendant’s morality. The stains on the souls of those in the dock are between them and God, not them and the court.”

• Scott Greenfield opines that “the vast majority [of defendants] fall within a relatively gray area of morality, where they possess a rationale for their actions that may fail to comport with what most people would consider moral choices but which is not so far outside the box as to render them evil.  Wrong, perhaps.  Stupid often.  But not quite evil.”  As for the Not Guilty Plea:

“These words are not a moral statement, but a legal one, encompassing the plethora of issues and challenges inherent in the criminal justice system.  To utter them in response to ‘how do you plea’ in the courtroom is never to be immoral, for morality plays no role in the proceedings.”

Because some blawgers and commentors were mocking those who confuse the everyday definition of “not guilty” with the legal or judicial meaning of those words, I piped in at Simple Justice that lawyers ought to be educating not ridiculing the public on this topic, and indeed has had centuries to do so.   The legal profession should, concisely and using Plain English, explain the Not-Guilty Plea’s meaning and justification in our criminal justice system, especially its relationship to the privilege against self-incrimination.  Then, we should use our public relations savvy and access to all sorts of media to get the word out — maybe even inserted into episodes of Law and Order or CSI — that:

1. “Not guilty” doesn’t just mean “didn’t do it” in our judicial system. It also means “I’ve got some good defenses,” “I’m presumed innocent,” “you gotta prove it, dudes,” or “I want a trial”
2. “Not Guilty” is the only answer available to a perp who isn’t willing to give up the important privilege against self-incrimination and the status of being “presumed innocent.” For him or her, it’s the best answer out of the three choices available at the arraignment.  Even if more “accurate” or “truthful” pleas were available, such as “did it, but you have to prove it” or “did it, but it was justified,” they would be a form of self-incrimination.
3. Allowing a perp to preserve his or her 5th Amendment right against self-incrimination by making a Not-Guilty Plea serves two valuable and interrelated interests: The preservation of an accusatorial system of criminal justice and the preservation of personal privacy from unwarranted governmental intrusion.  Our 4th and 5th Amendment rights would be far less meaningful, if they were available only to the “innocent.”

[For more on the history and justification of the right against self-incrimination, with cites and links to relevant case law, see “Fifth Amendment Rights of Persons: Self-Incrimination,” from the Congressional Research Service Annotated Constitution.]

Let’s hope we don’t have to wait a couple more centuries for the legal profession to come up with informative explanations of the Not Guilty Plea (this Meida Manual by the Boulder County Bar Association doesn’t come close).  Given their expertise, the f/k/a gang thinks the Criminal Law Bar — prosecutors, professors, and public or private defenders — should take the lead.  Considering how many of them blog and tweet their days away, they surely seem to have enough spare time for the project.  We hope that some fragments of this post will be of assistance, and offer this opening, to get the ball rolling:

Why Isn’t the Perp’s “Not Guilty” Plea a Lie? The ability to make a Not-Guilty Plea is central to our criminal justice system, which is accusatory not inquisitional.  That is . . .

. . . . .

Finally, as is our habit here at f/k/a after long pieces of punditry, we offer some short pieces of poetry.

lonely road
a policeman listens
as i recite the alphabet

… by ed markowski

lightning flash–
only the dog’s face
is innocent

night fishing–
the pleading
of a katydid

accusing the pine
of foolishness…
evening mist

in and out
of prison they go…
baby sparrows

… by Kobayashi Issa, translated by David G. Lanoue