GUILTY - Beyond a Reasonable Doubt

This posting is based on a presentation given to the Philosophy Club, The Villages, FL, on 26 August 2011.

The PowerPoint slides may be downloaded here.

WHAT IS THE STANDARD OF JUSTICE?

In CIVIL cases, where one person or organization is suing another, the standard is Preponderance of the Evidence, meaning that the winning side must tip the scale of justice by at least a little bit.

In CRIMINAL cases, where The State charges an individual, the standard is much higher. It is Beyond a Reasonable Doubt, meaning The State has a very high burden of proof, reflecting the seriousness of the charge and the potential punishment.

In the past, the phrase "and to a moral certainty" has been used, but it is no longer used in NY and NJ and some other states because it is "outdated and potentially confusing". Indeed, some people interpret the standard to essentially require that the judge and jury find the defendant guilty beyond all doubt, which is an impossible task in many crimes.

According to the Federal Judicial Center:

• Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.

• There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.

• If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.

• If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

JURY ERROR

In the well publicized OJ Simpson and Casey Anthony cases, many of us think the jury acted in error in finding the defendants not guilty.

OJ was rich enough to hire an excellent defense team. His celebrity and race appears to have led to what is called "jury nullification" where evidence is ignored in favor of some higher considerations. In this case, it was an ill-considered effort to correct past and ongoing discrimination by the US justice system against poor people in general an African-Americans in particular by releasing a rich man who, despite his race, has done very well in our country.

Casey Anthony, on the other hand, was neither rich nor black, but she was young and (to some) good-looking, and the unusual nature of the crime she was charged with and her bizarre actions after the death of her daughter attracted media attention. The State (IMHO) over-charged her by going for first-degree murder. No one (but Casey) may ever know exactly what happened, but I believe she was not guilty of pre-meditated murder but only of horribly negligent actions that led to her daughter's demise. I think she over-medicated the child with chloroform, to quiet her so she would be free to go out on the town.

THE "CSI" PROOF PROBLEM

Part of the problem is the unreasonably high level of expectation of proof juries have come to expect based on their experience watching crime programs such as Crime Scene Investigation (CSI) on TV. In many of those programs, the evidence is solidly physical and overwhelming. Juries therefore have a tough time with circumstantial evidence.

ARGUMENTS FOR "LAW AND ORDER" JUSTICE

• If a guilty person is mistakenly acquitted, he or she will likely recidivate and commit further crimes, condemning innocent civilians to becoming victims of crimes.

•Many wrongly convicted defendants have bad past records. They are most likely guilty of something.

• Not-guilty verdicts reduce respect for and fear of the police force, and thus are detrimental to public safety.

ARGUMENTS FOR MORE CAUTIOUS AND LENIENT JUSTICE

• If an innocent is wrongly convicted,then the cops stop looking for the actual criminal. He or she is still free, posing a danger of further crime.

• A guilty person mistakenly acquitted is likely to be re-arrested for further crimes and eventually will be jailed, and justice done.

» A guilty verdict in a highly charged case (e.g., O.J. Simpson) may cause riots. Better to let one killer go free than to have more innocents die.

• Many defendants are poor and have been abused by their families and society. Their crimes are a cry for help. Forgive them!

• A guilty person may escape justice on Earth, but will be severely punished in the afterlife. God’s justice will be done.

CRIMINAL RECIDIVISM STATISTICS

Within six years of release, after serving their term in prison, over 70% of convicted criminals will be arrested for a crime, and an astounding 50% will be convicted of another crime. Recidivism rates are higher for those released at younger ages. Thus, given that convicts have high recidivism rates, it stands to reason that criminals who get away with their crimes (either by not being arrested or, if arrested, being found not guilty by the jury), will have even higher recidivism rates since they are generally younger.

The graphic at the head of this posting shows the consequences.

1) Given ten murderers in a community, there are likely to be about twenty victims (since many murders involve more than one victim).

2) Violent crimes tend to be cleared by arrest at a rate of about 60% for murder. (Other violent crimes have clearance rates that are much lower, such as about 25% for rape. Non-violent crimes have even lower clearance rates, below 20% for theft and burglary.)

3) Thus, only about six of our ten murderers will be arrested and charged. Conviction rates are about 80%, so only about five of those six charged will be convicted and jailed.

4) This failure of justice leaves five murders out on the street, and they are likely to commit an additional ten murders.

5) Furthermore, when the jailed murders are released after serving their sentences, come of them will likely recidivate, leading to even more dead people.

Please consider the above if you even have the opportunity to serve on a jury!

Ira Glickstein

Runaway Trolley - Applied to Criminal Recidivism

The Runaway Trolley thought experiment was introduced in a previous Topic on this Blog.

The basic lesson was that there are situations where it is quite ethical to take an action that saves (or benefits) a number of people, even if that action has, as an inevitable side effect, the death (or detriment) of a smaller number of people.

This posting has to do with Criminal Recidivism, and how we might apply the lesson of the Runaway Trolley to the justice system.

POWERPOINT SHOW AVAILABLE

Click HERE to download a narrated PowerPoint Show that includes animated charts for the Runaway Trolley thought experiment. After the Runaway Trolley is explored, the charts continue and apply the ethical lesson to two real-world issues: 1) Criminal Recidivism and 2) End of Life Issues. This posting covers Criminal Recidivism only. A subsequent posting will cover End of Life Issues. The PowerPoint Show is based on a talk I gave to The Philosophy Club at The Villages, FL, on 04 February 2011. NOTE: The Powerpoint Show is Narrated and plays and advances automatically after download to your computer.

WAS MAIMONIDES RIGHT ABOUT CRIMINAL JUSTICE?

Moses Maimonides, the 11th Century Rabbi and medical doctor shown in the sketch above, is one of the most highly regarded ethical teachers in Jewish tradition. He famously wrote that it was better to let 1000 guilty go free rather than wrongly convict a single innocent. Do you agree with that ideal? Is an error rate of 1/1000 the correct standard for a criminal justice system?

Juries in criminal cases are charged with the responsibility to convict only if the evidence meets the standard of being beyond a reasonable doubt. The 1/1000 standard corresponds to a certainty of 99.9%. Is that a good working definition for beyond a reasonable doubt? Is that number too high? For example, in civil cases, the standard is the preponderance of the evidence, which means, if one side proves its case to a certainty of 51%, the other side loses. Is 51% a good working definition for beyond a reasonable doubt?

Well, Benjamin Franklin, US Founding Father, said the number of guilty released to save one innocent from being wrongly convicted was 100, which corresponds to 99%. William Blackstone, the 18th century jurist who codified British Common Law, said the correct value was 10, corresponding to 90% certainty. Benjamin Cardozo, 19th century US Supreme Court Justice, said the number was 5, corresponding to 80% certainty. And, Voltaire, the 18th century French philosopher, said the number was 1, corresponding to 50% certainty.

How in the world can so many respected men have such different standards for criminal justice? How may we use the Runaway Trolley to arrive at a reasonable number?

CRIMINAL RECIDIVISM RATES

The graphic lists criminal recidivism rates for a number of crimes. Notice that nearly all violent crimes, including assault, murder, robbery, and sex crimes have recidivism rates above 50%. That means that, when a person has been convicted of a violent crime and has served his sentence and is released, there is a greater than 50% likelihood that he will commit another violent crime, be caught, and convicted again.

FUTURE VICTIMS CONDEMNED BY FAILURE OF JUSTICE

Criminal Recidivism rates for violent crimes teach us that, every time we release two convicts, we are, in essence, condemning at least one innocent to become the victim of a future crime. The number of innocents condemned is probably considerably larger than one because: 1) Many violent crimes have more than one victim, and 2) The released convict is likely to commit more than one violent crime before being caught and convicted again.

Extending this lesson to criminal trials, if, after weighing the evidence of a violent crime we the jury believe there is a greater than 50% likelihood the defendant is guilty, we should vote him guilty!

If there is only a 51% chance he is actually guilty, and we release him on a technicality or because we feel sympathy for him, and it turns out he was actually guilty, we are denying justice not only to his victims in the current case, but there is a high likelihood we are also condemning future victims to violence.

If we convict him on 51% certainty, and he turns out to have actually been innocent, we are doing a serious injustice to an innocent man. But, what is the likelihood he is totally innocent? Unless corrupt police have purposely framed him (in which case they would most likely have manufactured overwhelming evidence, which is not the case here), we are probably dealing with a person who has an extensive rap sheet and other indicators he has not lead a respectable life. He may not be guilty of this particular crime, but his incarceration will not be much of a loss to society - certainly not as much as the death or serious injury for one or more totally innocent victims if we make a mistake and release someone who is actually guilty.

The justice system is so dominated by lawyers and legal technicalities that rich people with clever lawyers can literally get away with murder, as many of us think happened to OJ Simpson.

RECOMMENDATIONS

1) Reform the Court System. Change the rules of evidence. Make it harder to get off on a technicality or with a clever lawyer.

2) Change the way we handle people convicted of violent crimes. DO NOT release them after their sentence is served. Keep them in some type of work camp.

3) Perhaps modern technology provides a humane and affordable solution for dealing with released convicts and others with extensive rap sheets. Stick a chip up their butt so they may be tracked for the rest of their lives. If there is certainty they will be caught and convicted if they commit any kind of infraction, they may learn to stay on the straight and narrow.

My free online novel, 2052 - The Hawking Plan, envisages a society, several decades from now, when everybody "voluntarily" carries an RFID device that effectively tracks their every move and activity.

Does that sound too drastic? Well how about your total lack of privacy right now? Those of us with homes and computers and cell phones and cars and jobs are effectively tracked by various computers and video cameras as we go on with our lives. We leave video and computer records dozens of times every day. The only people who have any privacy anymore are the drifters and criminal class, one of whom is likely to steal your car or credit card!

NOTE: Subsequent postings in this series will extend this lesson to the real-world situation of End of Life Issues.

Ira Glickstein

How to Dry Clean the Money-Launderers

LARGE CASH TRANSACTIONS ARE OFTEN CRIMINAL

In 2005, $90,000 in cash was found in Congressman William J. Jefferson's (D-LA) freezer, wrapped in foil and stored in a Boca-Burger box. When that news came out, I had two questions: 1) Are vegetarians trustworthy? (Boca-Burgers are vegetarian :^), and 2) Exactly who gave him that money and what did he intend to do with it?

The Serial Numbers on some of the money found in the freezer matched bills given to an FBI informant. Despite the evidence, and the serious charges, Jefferson was re-elected in 2006. He won the Democratic primary again in 2008, but was defeated by a Republican.

In 2009, Jefferson was convicted on several counts, including conspiring to bribe a Nigerian official to aid his business ventures in Africa. However, he got off on the actual bribery charge because the money, having been seized by the FBI, did not actually get to that foreign official. Based on FBI videotapes and other evidence, the $90,000 seized was but a fraction of the hundreds of thousands he solicited while a congressman and co-chair of the caucus on Nigeria and African trade.

Wouldn't it be interesting to know where that money came from? Indeed, would it not be great if we could trace at least some of the cash money seized from drug dealers and other criminals?

HOW TO TRACE CASH MONEY COST-EFFECTIVELY

A currency counter with counterfeit detection capability is shown above. Machines of this type, which cost less than $500, are routinely used by banks and companies that have to process large amounts of paper currency.

It would be relatively inexpensive to add the ability to read and record the Serial Number of each bill processed, and associate the numbers with the time, date, and location of the counting machine. Indeed, here is a Serial Number recording machine offered for sale to law-enforcement agencies.

If all regulated banks were required to add this capability to their currency counters and ATM machines, and if businesses that deal in cash were encouraged to do so as well, we would have a tidy record of the time and location of many of the bills involved in cash transactions. It would not take much more effort for the computers to also record the account numbers of the people who deposited or withdrew the cash and associate that information with the Serial Numbers as well.

The Serial Numbers on money seized in criminal investigations could be compared to the Serial Numbers on the bank and business records and that would provide the past date and location history of at least some of the bills in that bunch. If the record also included the account numbers of some of the people who handled that cash, that could help trace it and provide clues to the source of the money and perhaps the names of the individuals who would be persons of interest in the crime under investigation.

Ira Glickstein

We Need a Comprehensive DNA Database

A recent TV newsmagazine featured the story of a woman who was raped some 20 years ago, before DNA was generally available to confirm the identity of the suspect. She testified that she carefully observed the facial features of her assailant and helped the police sketch artist make an excellent drawing. She then picked Ronald Cotton out of a photo lineup and later the same guy out of a physical lineup. On the basis of her certain eyewitness testimony, Cotton was convicted and sent to jail.

About 15 years later, another inmate, Bobby Poole, was assigned to the same jail. Poole looked so much like Cotton the guards sometimes called them by each other's name. Cotton appealed for DNA tests against the rape kit that had been preserved by the police. The tests proved Cotton did not do the rape. They also proved that Poole did. Poole was convicted and Cotton was released after spending a decade and a half in jail for a crime he did not commit. Cotton graciously forgave his mistaken accuser.

Cases like this show how unreliable eye-witness reports may be, even if (as in this case) the victim was highly intelligent, took care to be observant, and she and the police and the trial court were totally honest and professional.

According to the TV program, several hundred wrongly-convicted inmates have been released in the past decade on the basis of newly available DNA technology. That is a tremendous stride for justice!

HOWEVER RAPES AND OTHER VIOLENT CRIMES STILL OCCUR

While DNA tchnology is now available to confirm the identity of the rapist if, as in most cases, a DNA sample can be obtained, rapes and other violent crimes continue to occur with disturbing frequency.

The problem is that DNA is used only to confirm identity. The police have to use far less certain, old-fashioned methods to track down the suspect. They must depend upon eye-witness evidence that is known to be unreliable. They depend upon informants who are often criminals themselves and may have their private agendas. They depend upon stereotypes and -lets admit it- profiling based on criminal history, race, age, neighborhood, and gender.

WHAT IF A COMPREHENSIVE DNA DATABASE WAS AVAILABLE?

When an automobile is involved in a crime or an accident and the license plate number is caught on video surveillance or is reported by a witness, it is easy to identify the owner of the car and investigate further.

Wouldn't it be great if this was the case with rapes and other violent crimes?

Violent assailants often leave some bodily evidence (ejaculate, hair, saliva, blood, skin, sweat, ...) on the victim and/or at the crime scene. Given a comprehensive DNA database, it would be almost as easy as looking up a license plate number to finger the suspect!

Yes, a careful and thoughtful rapist could wear gloves and a hairnet and use a condom and require his victim to douche, etc., and that would defeat the DNA ID method in some cases. However, most assailants are not that clever.

OBJECTIONS TO A DNA DATABASE

The only rational objection to a DNA database would come from potential rapists and other criminals who don't want to be caught - and their criminal defense lawyers who like a steady income - often paid out of public defender tax dollars.

Yes, there is the issue of "privacy". Many people do not want their DNA (or fingerprints) on file at the FBI or other police agency because they are worried about how such identifying data might be used by a rogue government cracking down on dissidents or other non-favored individuals.

That is not a worry for me. I quite willingly had my fingerprints taken as part of a security check to allow me to work on classified military projects. As far as I know, my fingerprints ar still on file at the FBI.

In any case, for most of us who have a well-documented and fixed place of residence, families, employers, sources of income, bank accounts, credit cards, cars, and so on, we are easily found. Those of us who keep our cell phones on at all times are leaving computerized records of exactly where we have been, minute by minute, every single day. The only people who may benefit from "privacy" are the homeless and jobless, and the criminals who may commit crimes while using YOUR stolen car or cell phone or credit card or identity!

Another issue, more serious, is the possible use of a DNA database to identify individuals who may be susceptable to certain genetic diseases, and the possible use of that information by health insurers to refuse coverage or charge a higher premium. (As a utilitarian, I see nothing wrong with the current actuarial system where young men pay higher auto insurance rates, smokers higher health premiums, people living in wooden houses higher fire insurance, those in tornado alley higher storm insurance, and so on based on demonstrated risk levels. Unfortunately, health insurance seems to be moving into a different category even for illnesses that are mostly self-inflicted due to smoking, drinking, or over-eating.)

The genetic ID objection may be dismissed easily. DNA has sufficient markers such that those associated with genetic deseases may be eliminated from the DNA record stored in a comprehensive database. There are plenty of DNA markers available without getting into medical risk levels.

COLLECTING DNA IS EASY

When my son-in-law and I were teaching classes at Brandeis Summer Odyssey several years ago, he wanted his students to do a DNA project. The administrators would not allow him to take samples from students, who were minors of high school age, so they took samples from faculty members, including me. All I had to do was touch the inside of my cheek with a q-tip. Very easy and rapid. The students ran the sample through DNA testing equipment my son-in-law obtained from Harvard University. DNA samples could easily be taken at Motor Vehicle Departments when new driver's licenses are issued. They could also be taken at high schools as part of the driver's ed class.

Ira Glickstein