CRIMINAL LAW 2.0
From the Georgetown Law Journal:
Hon. Alex Kozinski (1)
Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. (2) There is reason to doubt it, because very few criminal defendants actually go free after trial. (3) Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.
1. The author is a judge on the Ninth Circuit. He wishes to acknowledge the extraordinary help provided by his law clerk, Joanna Zhang. © 2015, Alex Kozinski.
2. Actually, as Sasha Volokh points out, the number of guilty men we are willing to free to save an innocent one is somewhat indeterminate.
See Alexander “Sasha” Volokh, n Guilty Men, 146 U. PA. L. REV. 173, 187-92 (1997).
3. According to the most recent United States Attorneys’ Annual Statistical Report, out of the 3424 federal criminal cases that went to trial in 2013, only 228, or about 6.7 percent, resulted in acquittals. See Dep’t of Justice, U.S. Attorneys’ Annual Statistical Report: Fiscal Year 2013, at 51-56, Tables 2 & 2A (Sept. 22, 2014),
available at http://ww stice.gov/sites/default/files/usao/legacy/2014/09/22/13statrpt.pdf