Since time began, there have been grave injustices when people are punished simply on allegations of wrongdoing. Think Inquisition, Salem Witch trials. A person could be punished to death by a mere accusation that satisfied the desire of the state to purge society of a perceived ill. Our founding fathers sought to establish principles of fairness and due process to prevent heavy-handed prosecutions and wrongful convictions.
In America, not only does an accused have a right to understand the nature of the charges and a speedy trial, but to confront the accuser and, at the same time, remain silent. The burden is always on the prosecution to prove with admissible evidence that a crime has occurred.
The prosecutor must convince a jury of a crime beyond all reasonable doubt. That is a heavy burden, which also means some criminals go free. The burden is high so that fewer wrongly accused people are convicted. Despite that burden, juries get plenty wrong, and there are innocent people in prison. Consider how the use of DNA evidence has exculpated people after decades in prison.
It is extremely difficult for people to figure out when witnesses are telling the truth, lying, or simply mistaken. Brains and circuitry do not work perfectly. People get confused and see or remember things differently. People create stories that appeal to their ego and sometimes imagine realities that others swear did not happen. And, of course, people lie. Exaggerations. White lies. Embarassment lies. Cornered lies. Manipulative lies. Revenge lies.
Studies have shown that people are wrong in their judgments of veracity as often as they are correct. So go ahead and flip a coin. Prosecutors usually avoid cases where the only evidence is, “he said,” “she said.”
Unless there is corroborating evidence, it is practically impossible to determine truthfulness of allegations. Cross-examination is at the heart of a necessary probe. Pointed questions explore biases, weaknesses, gaps, inconsistencies, and poke holes in testimony. It is a vigorous process. Other evidence may also support or tear at the allegations. A compelling story may still be suspect due to inconsistencies.
Studies have shown that people act emotionally and then rationalize their actions. If we identify emotionally with someone, we look for evidence to support our feelings. That tendency is partly why a judge instructs jurors to follow the law and evidence and not let prejudice and emotion interfere with being impartial.
In the court of public opinion, emotions dominate and are manipulated. Tribal identity (if you’re a Republican, you believe Republicans, and vice versa) and identity politics (such as race and gender) ask members to act based on simple emotions untethered to facts. The need for constant, independent, critical thinking is paramount.
All people and political parties lie and manipulate to some extent. The disregard for due process by Senate Democrats in the Kavanaugh hearings by their rush to judgment, despite inconsistencies and lack of corroborating evidence, and the intolerance shown for questioning of the accusers by many, are slippery slopes. Shouting at people to believe something, substantiated or otherwise, is dictatorial.
Have we forgotten, “To Kill a Mockingbird,” where a woman wrongfully accused a man of rape, which the entire town believed, that was disproved at trial?
All have been falsely accused of something since time began, and the search for truth is challenging and imperfect. But if we erode and forsake fairness and due process for political gain or other reasons, we will undermine the protections that have distinguished America from much of the world and will fall.
By John H. Reaves, Esq.
Reprinted from the Santa Barbara News Press, Sunday Voices. January 20, 2019.