Tag Archives: courts

Legal doublets

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I like the term legal doublet. It sounds like a fancy suit someone might wear to court. Its actual meaning, though, is even more interesting: it’s a legal phrase with two (or more) words that mean the same thing. Here are some examples:

  • cease and desist
  • aid and abet
  • will and testament
  • hue and cry
  • lewd and lascivious
  • give, devise, and bequeath
  • null and void
  • have and hold
  • keep and maintain
  • terms and conditions

What’s the deal? Are lawyers paid by the word? Nope. As with many other things in the U.S. criminal justice system, the explanation goes back to the 11th century and the Norman Conquest.

At the time of the conquest and for a long time afterward, England was not a land with a single language. In fact, three major languages were in use. The common people spoke the Germanic Anglo-Saxon, which evolved into English. The nobility, however, spoke French. And Latin was used by the clergy and educated people, including lawyers. Furthermore, as time passed, the use of language shifted, so French and Latin were used less in official contexts and English was used more.

Clarity is of utmost importance in legal language. So often, in order to make sure the meaning was clear to all, a legal phrase might be written in two or more languages. We can see this well in give (English), devise (French), and bequeath (English again). And in will (English) and testament (Latin).

But there were other uses for doublets as well. Sometimes two very similar words carry different nuances, and a writer wanted to cover all the bases. Breaking and entering is a good example of this. They’re pretty much the same thing, although perhaps a savvy lawyer could argue that a person could break (a window or a lock) without entering (stepping foot on the premises) or, if the door was unlocked, could enter without breaking. Better to include them both. Assault and battery is another example. Technically, assault is putting someone in fear of harmful or offensive contact, whereas battery is the harmful or offensive contact itself. You could have one without the other: the perp could threaten but not carry it out (assault) or the victim could have his back turned and never see the punch coming until the fist hit him (battery). In most cases, though, where you have one, you have the other.

The third reason for legal doublets is simply that they sound nice. They’re a rhetorical device. Raise the hue and cry sounds a lot better than just raise the hue or raise the cry (or, you know, just shout). Law has a rich oral tradition dating back to the time of Socrates, if not further, and lawyers have always wanted to sound good and important and knowledgeable.

As an author, I revel (rejoice, delight, exult, luxuriate, glory) in the linguistic diversity English allows us. Legal doublets are one interesting facet of this diversity.

 

 

 

Double Jeopardy

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I find myself sorely tempted to make a bad joke involving Alex Trebek’s long-lost twin. But I’ll spare you.

The protection against double jeopardy is contained in the 5th Amendment to the US Constitution:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

But the US didn’t invent the concept; we just borrowed it from English common law. The general idea is that it’s unjust to try a person repeatedly for the same crime.

There are two major repercussions to this right:

  1. Once someone is acquitted (found not guilty) of a crime, he can never be retried for the same offense. Period. Not even if three seconds after the acquittal is entered, he laughs evilly and admits his guilt. Not if new evidence is discovered. Not if God Himself comes down to Earth and says the guy did it.
  2. Once someone has been convicted and has completed his punishment, he can’t be given additional punishment for the same offense.

So if you’re a prosecutor, you want to make damned sure your case is solid before you step into court, because if you lose, you won’t get a second chance.

But the right also has limitations.

  1. Under something called the dual sovereignty doctrine, a person can be prosecuted by multiple jurisdictions for the same offense. Supposed George kidnaps Avery in California and drags him through Oregon and Washington before getting nabbed just south of the Canadian border. All three states can independently prosecute him for kidnapping, as can the federal government since the crime crossed state lines. He could get four separate convictions, four separate sentences. As a matter of policy, states will often decline to prosecute if the defendant is already facing hard time somewhere else—why spend the time and resources?—but that’s up to them.
  2. Double jeopardy doesn’t stop a person from being tried if he commits the same offense again. Suppose George is acquitted of robbery and the next day he commits a new robbery. He can be tried for the new one.
  3. Double jeopardy doesn’t stop a person from being tried for separate offenses. Suppose George not only kidnaps Avery, but also kills him. Even if George is acquitted of murder, he might still be tried for kidnapping. Law in this area gets sticky, so be careful. Suppose George stabs Avery and Avery survives. Now suppose George is acquitted of attempted murder—but two days later, Avery dies. Can George now be tried for murder? Probably, but it depends on the jurisdiction. Or suppose George kidnaps Avery, Barbara, and Carlos, all at the same time. If he’s acquitted of Avery’s kidnapping, can he now be tried for Barbara’s? And then Carlos’s? Maybe. Depends which rule the jurisdiction uses.

There are other complications too. Double jeopardy may or may not apply after a mistrial, depending on how and why the mistrial occurred. Double jeopardy doesn’t apply to civil matters (so even if someone’s acquitted, he can be sued) or to habeas corpus and other proceedings.

The takeaway for you as an author? Double jeopardy can make an interesting plot point, but take care how you use it.

But I’m Innocent, I Say!

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Fred fidgeted as the jury filed into the courtroom. He couldn’t read their faces; they seemed neither happy nor sad. Just determined to announce their verdict. And, he guessed, eager to go home to their families.

He wondered if he’d ever get to go home. To his golden retriever, Spot, and his Siamese cat, Mr. Mittens. To his comfortable bed and his collection of Dr. Who bobbleheads. To his 75-inch television with Netflix and HBO and the surround sound speakers he’d installed himself, the quality so amazing that when he watched Star Wars, he could swear he was actually in the Millennium Falcon.

Or maybe he’d spend the rest of his life locked up in the state pen, doing time for a crime he didn’t commit.

The jury foreman stood and cleared his throat. Fred held his breath. “Your honor,” the foreman said. “We pronounce the defendant innocent!”

Fred fainted dead away.

Now, Fred probably fainted from relief. But if he knew anything about the law, he might instead have fainted because the author got things so very wrong.

In the US, there are only two verdicts a jury can issue in a criminal case: guilty or not guilty. That’s it. A guilty verdict means the jury found that the prosecutor proved every element of the crime beyond a reasonable doubt. A not-guilty verdict means the jury found that the prosecutor failed to prove at least one element beyond a reasonable doubt.

There are a couple of implications in this. One is that a jury may be pretty sure the defendant committed the crime, but they must still find him not guilty (also called an acquittal) if they have a reasonable doubt about any element of the crime.

But another implication is that even if the jury is dead certain the defendant is innocent, the legal system doesn’t allow them to officially say so. All they can do is say he’s not guilty–and that doesn’t have quite the same ring to it as “innocent,” does it?

This situation helps us understand why someone can be acquitted of a crime but then successfully sued for the same actions. O.J. Simpson, for instance, was found not guilty of murdering his ex-wife and her friend—because, presumably, the jury had a doubt about some of the evidence. But when the victims’ families sued him for wrongful death, the families won judgments against him of over $35 million. The standard of proof in civil cases is much lighter than in a criminal case; in civil cases, it’s just a preponderance of the evidence (meaning the winning side has slightly more evidence in its favor). While the criminal jury found the evidence insufficient to meet the high burden in a criminal case, the civil jury found the evidence against Simpson more convincing than not.

Some states do have procedures that allow people accused of crimes to have a court declare them factually innocent, but these procedures are used only rarely and in limited circumstances.

So if the jury finds our friend Fred not guilty, he will get to return home to his beloved pets and his home entertainment system. Unfortunately, he may find that the trial and the criminal accusations hang over him for years, especially since they’re matters of public record. Hopefully, Spot and Mr. Mittens will console him.

 

 

 

Jury of Your Peers

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Marvin watched nervously as the jurors filed into the courtroom. None of them looked friendly. In fact, they looked mean. They all glared as if they’d already decided his guilt, even though the trial hadn’t even begun.

Swallowing thickly, Marvin tried very hard to look innocent. The tattoos on his cheeks—the ones that read DEADLY and KILLER—probably didn’t help. He should have listened to his mother. Too late, too late.

But as he noticed something else, he sat up straighter in the hard wooden chair. All of the jurors were at least twenty years older than he was, and unlike him, not a single one wore the purple braids indicating that he or she worshiped the Great Agapanthus Goddess.

Excited, Marvin poked his lawyer. “Hey! Hey!” Marvin whispered. “It’s a miscarriage of justice. It’s not a jury of my peers!”

Marvin’s lawyer gave him a pitying look. “I’m afraid I have bad news for you.”

Marvin’s screwed.

The language about a jury of one’s peers is old, having first appeared in the Magna Carta in 1215. Because I’m a nerd, here it is in the original Latin:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

And here’s the translation:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

The Latin word parium had a very specific intention back in the 13th century. It meant the members of a jury had to be no lower in social standing than the defendant. And since the primary purpose of the Magna Carta was to limit the rights of the king with respect to what he could do to other members of the nobility, the barons who wrote the thing weren’t intending to protect common people at all.

Flash forward half a millennium and across the Atlantic. When James Madison wrote the 6th Amendment to the US Constitution, he was certainly influenced by the text of the Magna Carta (and by the English Constitution):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But look what’s happened: there’s no mention at all of peers.

As a matter of practice, the 6th Amendment is interpreted to mean that a jury must be fairly representative of the community in which the crime took place. Not precisely representative, and not the same as the defendant himself. This means that potential jurors can’t be excluded because of certain factors, such as race, religion, gender, and so on. But in reality, juries are generally comprised of people who are older and more affluent than defendants—in part because poor people can’t afford to lose income while serving on a jury.

So where does this leave Marvin? Nowhere good, unless he can prove that the prosecutor systematically excluded young potential jurors and those who were loyal Agapanthans. Proving that is very difficult, though.

Marvin should have listened to his mother.

 

Where’s the Justice?

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What happens in the courtroom has nothing to do with justice.

Today I’m addressing this issue posed by author Cody Kennedy. His upcoming novel, Thárros, deals with exactly this issue.

But how can I argue this? Criminal justice has justice right there in its title, right? Is it false advertising? Yeah, sort of. And be forewarned: this post contains my opinions. They’re well-informed opinions, though, with years of experience behind them, so I stand by them.

Here’s what you need to keep in mind:

  • Criminal justice has little or nothing to do with victims. It wasn’t designed to. We already have a civil justice system that allows people to demand monetary compensation for their losses via lawsuits. Nothing the CJ system does to convicted offenders—fines, probation, incarceration, death penalty—does victims any good, apart from perhaps giving them some sense of safety, satisfaction, or closure. (An exception to this is restitution, in which the offender pays the defendant directly to compensate for damage from the crime.) Victims play only a minor part in the CJ system, aside from their roles as complainants and witnesses and perhaps the submission of a victim impact statement before the defendant is sentenced. Those who study the CJ system say it acts on behalf of society as a whole, not on behalf of victims. In fact, sometimes victims may even be harmed by the process.
  • The primary principle behind the CJ system is due process, not justice. What does that mean? It means that the system aims for fairness. It exercises great care to make sure that rather complex procedures are followed. But even when the system is perfectly fair—which it isn’t always—it won’t necessarily be just. Some people we know to be guilty are going to go free because a cop screwed up. Some people we’re pretty sure are innocent are going to stay in prison because the proper channels were all followed at trial and during appeals but the exculpatory evidence (evidence that gets them off the hook) didn’t show up until it’s too late. Neither of these situations is just, but they are consistent with due process.
  • Prosecutors (and others) are practical. Currently, only 3 out of 1000 serious criminal acts result in a trial. I’ve blogged about this already. For now, what you should know is that prosecutors won’t charge someone with a crime unless they’re pretty sure they can get a conviction. There are several reasons for this, including the fact that district attorneys are elected, and they need good conviction rates to get reelected. In addition, there is huge pressure all around to plea bargain—to offer a defendant lesser charges if he pleads guilty. Without plea bargaining, our courts would be hopelessly backlogged. But this expediency means that even when it’s pretty clear that someone has committed a crime, there’s a good chance she won’t be charged with it at all, or that she’ll end up with a conviction for something much less serious.
  • The courtroom itself is a cipher. What if we have one of those rare cases that makes it to court? Human beings are going to make decisions about which evidence to present—decisions that are strategic but may not seem just. And a human being is going to make a decision about guilt. In fact, in the US that decision will probably be made by a group of a dozen human beings. One of my areas of academic research is jury decision making, so I can assure you that juries are strange beasts. They get influenced by all sorts of things, including the attributes of the defendant and witnesses and attorneys, as well as the specific ways the evidence was presented and arguments were made. And that’s not really justice either.

Now, having written all that, I need to add two things. Our CJ system is highly fallible. It makes mistakes. It’s used discriminatorily. It’s unfair. But. I also think it beats many of the alternatives and is far superior to the justice systems in much of the world.

What does this mean to you as an author? Remember that the CJ system is, ultimately, made of people. Like a good character, your CJ system should be imperfect. And as you write (or read) keep in mind the realities of the CJ system, and don’t try to make it do things it just doesn’t do.

 

 

Order in the Court

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Straight-backed and steely-eyed, Amanda Bennis gazed at the jury. “You’ve heard what the prosecutor has to say. Mr. Jones would have you believe that my client, poor sweet Jack Durham, is a monster. But you know in your heart that’s not true. Not a single shred of the prosecution’s evidence stands up to even the simplest scrutiny. Mr. Durham has never harmed anyone in his life. Please do the right thing. Uphold justice—let my client go!”

Although Amanda’s voice rang strongly throughout the packed courtroom, everyone could tell that the jury wasn’t swayed. Twelve pairs of eyes glared in Jack’s direction, twelve mouths turned down in scowls. Jack blinked, trying to keep the tears at bay. He was an innocent man, but nobody except Amanda cared. He was going to rot in prison.

But then, just as all hope was lost, a man stood up from his seat near the back of the courtroom. “Jack didn’t do it!” he yelled. “It was I!”

As the room erupted into chaos, Jack began to sob. Thank God. His evil twin had finally seen the light.

Dramatic courtroom scenes: the bread-and-butter of countless movies, TV shows, and books. Fun to watch, fun to write. In real life, though, few cases ever make it to court.

Criminologists like to talk about the funnel model of criminal justice. Out of every 1000 serious crimes that happen in the US, only about half are reported to police. Eighty percent of the reported crimes go unsolved, meaning we’re left with only 100 arrests. Sixty percent of those defendants will be referred to juvenile court or have their cases dropped early by the prosecutor. Ten of the remaining forty will jump bail or flee, never to face trial. So we’re left with only 30 cases going to trial.

But wait! There’s more! Of those 30 cases, 27 will result in plea bargains, almost always well before anyone steps into the courtroom. If you’ve done the math, you’ll realize that out of 1000 cases, only three will end up before a jury. (Of those three cases, two will result in convictions and one in an acquittal.)

It may be a little discouraging to look at these statistics, and the practice of plea bargaining is controversial. But imagine how backlogged our courts would be if the vast majority of criminal cases didn’t shake out before going to court.

It’s fine if you want to include courtroom scenes in your book. Just keep in mind how rare they are. You might want to acknowledge, at least in passing, that plea bargains are the norm. Give your defendant a good reason for refusing the plea deal—but give your prosecutor a strong enough case that it’s credible she’d bother to take it to trial.