Monday, May 5, 2008

Finding Truth is TV Law

Much to the dismay of prosecutors around the State of Texas, the purpose of a criminal trial is not to discern the "truth." Rather the purpose of a trial is to resolve a dispute between the government, who carries the burden of proof, and the accused.

I've thought about this today while reading the plethora of posts from, Grits, Simple Justice, Robert Guest, and others about Craig Watkin's call for criminal sanctions against prosecutors who withhold exculpatory evidence from the defense while seeking convictions. TDCAA message board posts from prosecutors piqued my curiosity about the true aim of criminal trials in America. From prosecutor Stacey Brownlee:
I've got no problem with something like this (bar sanctions not criminalization) as long as its not just for prosecutors but for the defense too. If its the truth we are looking for, let's get to the REAL truth !!
From Rob Kepple:
. . . let's assume we want to criminalize failure by a prosecutor to turn over exculpatory evidence.

If that is the policy of the state, seems that in the post-conviction world we would also want to criminalize the failure of a habeas/defense attorney to turn over any INCULPATORY evidence at that stage. That includes, of course, impeachment material, criminal records, witness statements -- everything that supports the existing conviction that today falls under Brady for the prosecutor when it comes to negating guilt or reducing punishment.
Prosecutors have long enjoyed jury arguments about discerning truth. Such arguments lessen the government's burden of proof and shift it to the accused. But a defense lawyer would be foolish to object before the jury. Can one imagine what the jury would think while a defense lawyer argued "we are not here to find the truth?" I was taught this tenet of governmental jury manipulation in baby prosecutor school years ago.

No. The notion of trial as a vehicle for finding truth is TV law. You won't find this aim in the Constitution, the Code of Criminal Procedure, the Penal Code, or the Rules of Evidence. Rather, trial is simply a means by which disputes are resolved. Truth finding is, at best, an afterthought. At worse, it's a fiction created by the side bearing the burden of proof to shift and lessen it to more easily obtain convictions.

1 comment:

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