One thing that has always annoyed me about American jurisprudence is that criminal prosecutions are based on process rather than a search for the truth. Anyone that has watched any legal proceeding or a television or movie about the legal system has heard the use of “the truth and nothing but the truth.” It creates the belief that the U.S. legal system is interested in the truth about what happened. In the United States there is the notion that the rights of an individual outweigh the rights of society. It sounds nice and neat, but is this true?
Let’s start with the obvious fallacy in this notion, the presumption of innocence. The idea is that in American jurisprudence anyone charged with a crime is innocent until proven guilty. The court case is supposed to determine whether the defendant is guilty and never whether the defendant is innocent. It is assumed that the burden of proof of guilt lies with the prosecutors.
That is what is supposed to happen, but what really happens is that the accused is treated as guilty from the moment the prosecutors begin to investigate an alleged crime. Even before the arrest, the investigators delve deeply into the activities of the accused. They interview family and friends and gather financial documents. These are intrusive but not too overly, although those interviewed usually look upon the defendant as possibly guilty because law enforcement is investigating. For the defendant it is bothersome but not overly so.
However, once charges are filed, the defendant, although presumed innocent, is subjected to the punitive consequences that come with being charged with a crime. The arrest to the jailhouse, however temporary or long is punitive in that the defendant’s freedoms are take away. Passports are usually taken away and travel restrictions are placed upon the defendant. Most defendants, if not all, are paraded from jail to the court house in shackles, clearly a punitive action. Yet, the notion remains that they are innocent of the charges until proven guilty.
We may not like Michael Cohen, but as of Monday, there have been no criminal charges filed against him. Yet, everyone, including the news media has convicted him of various financial crimes. “Where there is smoke, there must be fire” is the saying that most use to discuss Cohen and his recent travails. But, aren’t we supposed to assume that Cohen is “innocent until proven guilty,” or are those just words?
Much of my problem with the U.S. legal system’s apparent failure to get to the truth is that in my worldview, there is absolute truth and then there is the opposite. For example, if I ran out of fuel in the middle of a flight, there is only one possible outcome, my aircraft is going to go down. Whether I land, have a controlled crash or auger in depends on many variables, such as my skills as a pilot, the condition of the aircraft or how far I am from a landing strip. There are many other factors that determines whether I walk away or am carried away. But the undeniable outcome is that my aircraft is going down.
There is no possible way I can keep flying without fuel, not withstanding gliding for a bit.
However, as I understand it, American jurisprudence does not deal with absolutes, instead is deals with process. Those watching U.S. trials hear either “guilty” or “not guilty” further obfuscating the process. Guilty is obvious in that the prosecution proved the defendant was guilty to the satisfaction of the jury.
Unfortunately, the term “not guilty” muddies the waters because the jury does not determine that the defendant is innocent because we are to believe that the defendant is “presumed innocent” of the charges until convicted. Thus, to really understand the process, we must substitute the term “not guilty” with the term “guilt not proven.” Understanding that a jury’s job is to find whether the prosecutors proved guilt makes it easier to understand the “process”.
Apply this model to the case of O.J. Simpson and the murder of his wife and you’ll see why, although most of us believe he is guilty, he in fact was not punished for it.
The process makes sense to me, although grudgingly, when it comes to putting someone in jail for years, or even the death penalty. The process must favor the one to be punished for a crime they may not have committed. As the saying goes, “better ten criminals go free than one innocent man incarcerated.”
But I remain unsettled by the notion that U.S. jurisprudence is not about a “search for the truth” because of the recent debacle about Donald Trump. It is no secret that I find Trump reprehensible, but I still want to know if he interfered with the election process or has attempted to obstruct justice.
In the grand scheme of things, the answer to those questions, 1) won’t change my mind about Donald Trump and 2) will not deliver me the gift of Donald Trump trumped out of office. The fact is that removing Trump from office outside of the ballot box is next to impossible. There are just too many politics at play and ultimately the system protects itself from disrepute. The system does not want to have a case where a president is taken out of office because it would make the system questionable and open to criticism.
It is possible that Donald Trump may be impeached after the midterm elections but that does not mean he is thrown out of office because impeachment does not equal expulsion from office in many cases. Unless something extraordinary happens, it is unlikely that Donald Trump will be publicly expelled from the office, although I very much wish to see such an event.
Putting all that aside leaves the remaining questions open of whether Donald Trump purposely worked with the Russians or whether Trump obstructed justice. The latter is more likely to eventually have an answer but knowing whether Trump knowingly worked with the Russians will likely never be known as an absolute.
That brings me back to the question, whatever happened to the search for the truth?