Why Crime Is So Difficult To Prosecute

"Better a hundred guilty persons should escape than one innocent person should suffer." This quote, usually attributed to Benjamin Franklin, has its philosophy rooted in English Common Law, which traditionally chooses to err on the side of innocence. It also explains why it is so difficult to successfully prosecute even what appear to be "open and shut" cases in court. In the American system of juris prudence, prosecutors, representing the state, must prove their case "beyond a reasonable doubt." This does not mean there must be no doubt — such an impossibly high standard is something not even within the reach of modern physics — the evidence must be sufficient to convince 12 reasonable people the accused is, indeed, guilty of the crime of which he/she has been accused. 

Here are just some of the challenges prosecutors must overcome when trying to make their case and where criminal defense lawyers sometimes find areas ripe for attack:

1. Defining the Crime: To win a conviction, the state must first accurately describe the crime it believes has been committed. For example, police arrive in response to an anonymous emergency call and find the body of a 65-year-old man lying dead on an apartment floor. The state must now determine the cause of death. Was it the result of natural causes, such as a heart attack or stroke? Was it suicide? An accident? Was foul play involved? If the victim was killed by another person, was it malicious or an act of self-defense? If it was murder, was the murder planned (Murder I) or spontaneous (Murder II)? Was it simply the result of negligence (Manslaughter)? Each charge carries its own set of penalties, but defining the actual crime can be extremely difficult. But without defining the crime, let alone establishing a crime has been committed in the first place, charges, let alone convictions, are impossible.

This problem is not confined to cases involving death. So-called "hate crimes" are difficult to prosecute because they involve establishing specific motive, basically getting into the accused's head. Cases involving sexual assault and/or rape can be difficult to prosecute as well because of questions regarding prior consent, especially when the two parties have an existing relationship. Even white-collar crimes can be challenging because it is often difficult to distinguish between intentional fraud or embezzlement and legal accounting tricks or simple innocent bookkeeping errors.

2. Lack of Forensic Evidence: Since the original CBS TV series "CSI" became a big hit back in 2000, juries began to expect prosecutors to use volumes of forensic evidence: fingerprints, DNA samples, hair fibers, footprint casts, fingernail scrapings, etc. to prove their cases. Unfortunately, not all crimes, even crimes of violence, produce such forensic evidence, or at least forensic evidence that is clear and unassailable. Fingerprints can be smudged, hair fibers contaminated, footprint casts inconclusive, etc. And, prosecutors have become adept at explaining to juries forensics evidence is not always necessary for a conviction.

3. Contaminated Evidence: Even what looks like compelling forensic evidence may lose its potency if a defense attorney can prove it was not collected, handled, or stored in strict compliance with department regulations. 

4. Bad Eye-Witness Testimony: Many cases are based on the testimony of eye-witnesses; people who were at the scene of the crime. Unfortunately, eye-witness testimony is notoriously unreliable. People's memories are often faulty and prone to suggestion and the more time between the crime and the trial, the more unreliable their memory is likely to be. 

5. Unreliable Witnesses: In many criminal trials, the prosecution is forced to call other known criminals to testify against a defendant. It's usually quite easy for a defense attorney to cast doubt on the credibility of such witnesses, people who are already known crooks and liars, and who may be offering false testimony in exchange for lighter sentences or other perks. One need only look at recent events involving national political figures — where it is clear prosecutors fight hard to rebut doubt about cooperators.

6. Technicalities: "Technicality" is a loaded word. It suggests the defendant got off because of some trick or short-cut. In fact, "technicalities" are the rules, regulations, and Constitutional rights the law has put in place to ensure law enforcement authorities don't abuse their powers, and those charged have every legal means at their disposal to defend themselves against false accusations. If a defendant gets off on a "technicality," it usually means the state and its representatives have failed to do their jobs. 

In short, putting people in jail isn't easy. It's designed to be that way. It's why people trust the system. And that's good for everyone. But convictions still happen in a high percentage of criminal cases. Do you have your own questions about legal defense? Feel free to contact my office for help. I am also more than happy to answer your questions by cell at 714-381-1366 or @ bob@hartmannlawfirm.net.

Chase Geiser