Legal System Fix

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        Also, this page is not offered as legal advice. This is not a legal document offered in any court procedings. It is just the opinion of a concerned citizen about how to improve the legal system. If a lawyer recognizes arguments in here that could be used in court documents, then they are responsible for any documents they file. So...

       Here we go again... I remember back in the late 1990's when President Clinton was being accused and impeached on what seemed to be nothing more than one person's word for it. I thought at the time that his opponents were trying to weaponize the legal system on very little evidence. And now we have former President Trump accused and now convicted on what seems to be nothing more than one person's word for it. This also seems like weaponizing the legal system on very little evidence. And since Trump will still most likely be the Republican nomination for President, it seems like election interference.
       When President Clinton was being accused, he was facing impeachment. This makes it a matter for political leaders. But former President Trump was accused in a state court of law. This makes it a matter of concern for every citizen since anyone could possibly find themselves in state court. So the questions that concern us here are what is the problem, and how can we fix it? The problem seems to be an abuse of discretion. And the fix would be to require more accountability from court proceedings.
       Many are fearful about going through the court system, even when they are innocent, because it seems to be too much a game of chance about what judges and juries will consider sufficient and reliable evidence. It's always possible that judges and jurors will rely on their intuitions and feelings or possibly even their fears and prejudices when reaching a verdict. Do you realize that there is no law that courts must clearly state reliable reasons on the record as to why a defendant should be convicted? So those reasons cannot be examined in an appeal. This is enough to shock the conscience of any sane person. After all, isn't that actually the job of the prosecutor: to give the jury very explicit reasons why they should convict? And only after that the defense can try to raise doubts that those reasons are sufficient.
       But all too often the prosecutor will present only superficial reasons. For example, the prosecutor will present only one witness against the defendant. Yet just because the witness is classified as "evidence" does not mean it is reliable evidence. The prosecutor obviously does not think that every witness that takes the stand is truthful. So he is obligated to explain why this witness is truthful. But he will never do that. For his explanation would only assert a prejudice. He would say that this witness is a member of a traditional victim class and should be believed. Or, this witness is a member of the law enforcement class, and we should assume they always speak the truth. Or, this kind of demeanor proves that the witness is truthful. Yet we have no expert witness to explain the reliability of any of these assumptions. And if there were, the court would not allow it because it would prejudice the jury.
       In other words, the court refuses to present any reliable reasoning in these cases because they want the jury to judge based on their own biases and prejudices. So in reality no reason is presented on record why the jury should believe the one witness and convict the defendant. If the prosecutor were required to state a reliable reason to believe why this "evidence" actually proves guilt of the defendant, he would never bring such cases to court. Instead, they simply label the witness as evidence and assert that the jury has discretion. And this gambit is used to avoid their responsibility of stating reasons on the record to prove beyond a reasonable doubt why this particular evidence proves guilt. In my opinion this is just gaming the system and undermining due process of law. And because prosecution does not present evidence to show what feature or demeanor of the witness proves truthfulness or why, we don't know that the jury is agreeing that any specific feature proves the truthfulness of the witness and thus the defendant's guilt. How do we know that each juror is not mistakenly applying a bias or prejudice instead. The only thing to prevent this is to have specific and reliable evidence that shows why this particular witness is credible without simply injecting prosecutors own prejudices.
      I argued these issues 25 years ago in on-line forums when there seemed to be a rash of cases being litigated in the court of public opinion. You might remember when President Clinton, Michael Jackson, Mike Tyson, Bill Cosby were being charged with crimes based on the testimony of one witness. And now it seems relevant to discuss them again because of the trials that Donald Trump is going through. The sufficiency of only one witness seems weak at best. But the question becomes who is the judge of whether evidence is sufficient and reliable. Prosecution would say that it is the jury. Appellant attorneys argue for reversal all the time on the basis of insufficient evidence.
       Pro-prosecution advocates seem to endow the jury with special abilities simply because they are the jury. This seems to be another gambit to avoid responsibility to present adequate reasons. But no magical abilities should be assumed of the jury. They cannot read minds, for example; they have no clairvoyant abilities. Members of a jury are assumed to consist of random people from the surrounding community, some wise, some not so wise. No particular expertise is assumed. So it is difficult to understand where members of a jury would get the ability to read the demeanor of a single witness to determine lies from truths.
       This is actually an insult to the integrity of the judge or jurors. Where does the prosecutor think the jury got this ability to detect lying? Does he think that the members of the jury associate with liars that they should know what lying looks like when they see it? Does the prosecutor think members of the jury are liars themselves that they would know lying when they see it? If average citizens could detect lying, as prosecution assumes, then we would have to blame the victims of deception for their own demise because they should have known what lying looks like. But instead, we do not blame victims of deception because we assume people do not know lying when they see it.
       This assumed ability to detect lying comes from the belief that there are certain demeanors that accompany anyone who lies, a twitch of the eye, a hard swallow, a smirky smile, etc. But these behaviors have never been studied and confirmed to indicate lying. They are just urban myths or old wives tales. When did anyone gather statistics on how often a person twitches when they tell a lie? I don't think such a study could even possibly be done. For there is supposed to be a difference between sworn testimony and statements made outside of court. So we can't compare sworn testimony to out-of-court statements. This would be comparing apples to oranges.
       And to know that some demeanor indicates lying, we'd have to know that this demeanor is there only when that person is lying. In other words, the lone witness would have to commit perjury on the stand right in front of the jury so they could see that the demeanor was there when lying but not there when telling the truth. Otherwise, that demeanor might be there regardless of whether they were lying or not. But who can lie convincingly when everyone knows they are lying anyway? It's not possible to give an example of perjury when everyone knows you are obviously lying; it's not a real attempt at perjury. And since no court would ask a witness to commit perjury, we can't know that this demeanor is unique to only lying. Besides, how do we know if everyone lies with the same demeanor? Or, how do we know even one person always lies in the same way? How many times are we going to ask a witness to commit perjury so we can gather statistics on how probable it is that the demeanor indicates lying for the crucial questions?
        If there were more than one witness or physical evidence or expert testimony, then the jurors could deliberate over how likely the witnesses may have collaborated. Do they know each other? Did they have time and opportunity to conspire, even inadvertently? Is the testimony consistent, etc.? Was evidence handled so not to permit contamination? But just because one witness may tell a consistent story or state a plausible story does not mean that it is a truthful story. The lone witness may be deliberately lying or honestly mistaken or remembering incorrectly, for all we know. And prosecution is required to address these possibilities, but they won't because there is no way to distinguish between telling the truth or honestly mistaken for just one witness.
       There are people who make a scientific effort to determine when a person is lying. These are polygraph examiners. They measure physiological changes when a person responds to questions; they measure heart rate, respiration, perspiration, and skin conductivity. They believe the body unconsciously reacts in uncontrollable ways when a person is telling a lie. But since each person may have different responses, it becomes necessary to calibrate their equipment by having the person tell known lies. These are control questions used to form a basis of comparing truthful responses to lying responses. And this is precisely why polygraph results will never be allowed in court. For it establishes the precedent that the most reliable way of determining truthful responses is to ask the subject to lie in order to get a basis of comparison. Then the question becomes how do we know that polygraph examiner is telling the truth unless we ask him to lie on the stand for comparison purposes. Then the question becomes how many times do we have to ask a witness to lie in order to get reliable statistics. And then the whole case would immediately fall apart, and the prosecutor would be seen as a fool. But polygraphs are the most scientific means of determining a truthful demeanor. And if the most scientific means of determining truthfulness from physiological responses (demeanor) is rejected, then how can we expect mere humans to have this ability? It's not like juries have better measuring equipment than scientists. Are we now relying on the magical abilities of jurors?
       So courts will say things like, "credibility is left for the trier of fact (jurors) to decide." And they will leave terms like credibility undefined, only that it is something that makes testimony more believable. This is yet another gambit of using undefined terms to avoid stating reliable reasons on record as to how specific evidence actually proves guilt. Yet prosecutors, psychologists, forensic scientists, and criminologists spend their entire careers studying the details of how evidence proves guilt. Prosecutors have whole armies of professionals to rely on when making their case to the jury. You'd think if anyone knew a reliable reason to believe a witness, it would be they. But they leave the jury to their own discretion to convict or not based on reasons the prosecutor is not able or willing to say. Yes, it might be quite possible that the defendant is guilty. But how can it be beyond a reasonable doubt when the prosecutor himself cannot state reliable reasons to believe the testimony? They are basically asking you to guess. And we should look for ways to take the guesswork out of the legal system.
       It's not like there is no reference in western culture concerning this matter. Our most sacred documents specifically address this issue. The bible address this in Deuteronomy 19:15, where it says, "One witness is not enough to convict a man accused of any crime or offense he may have committed. A matter must be established by the testimony of two or three witnesses." And this is used in John 8:13, where it says, "The Pharisees challenged him (Jesus), 'Here you are, appearing as your own witness; your testimony is not valid.'". I mention these not to validate scriptures but to show cultural reference. These scriptures have been read and respected by many in the United States ever since its founding.
       And this is also addressed in the US Constitution. In Article 3 Section 3 it says, "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." I do remember cases of treason mentioned on the TV news where two witness were deliberately staged on the scene to catch the person in the act of treason. They said this was necessary because there were "evidentiary requirement" for treason.
       This brings up the question of whether this requirement of two witnesses was ever meant to apply to any crime other than treason. At first glance it would seem not. But there are reasons to think it should. For the same standard of judgement is applied in trials for treason as to trials concerning any other crime. We apply the standard of beyond a reasonable doubt in all criminal cases, treason or otherwise. And if juries could find someone guilty of treason beyond a reasonable doubt based on the testimony of one witness alone, then the requirement of two witnesses would be an obstruction to the normal process of justice. So if the requirement of two witnesses is not an obstruction, then it must have been meant to apply to other cases as well. You may hear lawyers say that beyond a reasonable doubt is the highest standard of judgement we have. We don't have a higher standard for treason such that it requires more witnesses to convict.
       You can find statements that say that there are "evidentiary requirements" of two witnesses for the crime of treason. But nowhere in the US Constitution do you ever find the phrase "evidentiary requirements". It is a made up term to keep it from applying to other crimes. And they are treating the requirement of two witness as if it were an necessary element of the crime of treason. But the requirement of two witnesses is not an element of the crime of treason. For the US Const says that treason will consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. There is nothing stopping prosecutors from charging someone with treason, and whether there are two witness or not can wait until trial. So the requirement of two witnesses has nothing to do with defining treason. It is part of the standard of beyond a reasonable doubt to be used; it was put there as an example to define the standard of beyond a reasonable doubt. And we only have one such standard for all crimes. Do you really think that the US Constitution, a document dedicated to general principles would specify special cases? The "evidentiary requirement" argument is a case of special pleading from general principles. It doesn't work.

        So the question is what can be done to make the US legal system more reliable and free from prejudice and prosecutorial misconduct. Can this be done within the legal system? Or, does this require an Act of Congress to alleviate these problems? Obviously, there needs to be more oversight of lower courts, especially in very serious criminal cases. There should be an agency to which one may appeal the charges even before it goes to court. For too many prosecutors will abuse their discretion in order to create trumped up charges, or overload someone with many fabricated crimes just to get them to plea bargain to avoid a trial. That has to end. And if prosecutors know that they may have to give an account to an oversight agency about how they use their discretion, then they will think twice before trying to ruin peoples' lives with fabricated overcharging.
        This oversight agency would need to have authority to review what evidence prosecution intends to use and what argument they might use to show that this evidence should lead to conviction. This would stop all lawfare and witch-hunts.
        Perhaps plea bargaining has to end. For this is what is motivating prosecutorial misconduct to begin with. If prosecutors know that whatever crime they charge must necessarily go to trial, then they will make sure they have sufficient evidence before even charging a crime. And for the same reason they would have to be prevented from charging with more serious crimes on the same evidence if the defendant does not cooperate.

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To be added later:

...some advocate the if Trump becomes President again, he should take revenge on his political advasaries. But we don't need a repeat of these abuses of discretion. The only moral course seems to be to try and fix the legal system so nothing like this ever happens again.

... no different than legislation requiring officers of the court to read Maranda rights. Is that interfering with court proceedings?

If there were any serious bodily injury or corroborating evidence from others, then that is more than one person's word of it.

In cases that involve assaults, the court will no doubt automatically impose restraining orders to prevent the accused from having anymore contact with the accuser.