Legal fictions: a one-way street

The deck is stacked, the house always wins, etc., etc., etc. Phrases routinely used to indicate that the playing field is not level and is biased for one side against the other. I’ll give you another: consciousness of guilt. A legal fiction of the worst kind, to be sure. Consciousness of guilt is a neat little tactic employed by prosecutors and condoned by courts that seeks to cast every action taken by a defendant post-offense in a light most indicative of guilt.

Did the defendant realize that the justice system is a mess and he was going to get convicted no matter how innocent he was, so he took off? Consciousness of guilt. Did he lie to officers because he mistrusts them? Consciousness of guilt? Did he decline to make a decision about whether to submit to  breathalyzer until his spoke to his lawyer? Consciousness of guilt.

As you’re well aware by now, there is no presumption of innocence, just a presumption of guilt. And how does the court system solidify that presumption? By pairing it with the “guilty conscience”.

Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.

So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.

So Mr. Seekins’ jury gets to draw an inference from the fact that he said he wouldn’t decide whether to take a breathalyzer until he spoke to his attorney (note that he didn’t actually refuse the breathalyzer), but they can’t draw any inference from the fact that he then subsequently asked the police to administer that breathalyzer and they refused:

The defendant stated that he would not do anything until he called an attorney and had an attorney present. [Police officer] Gamache offered the defendant an opportunity  to contact his attorney and permitted the defendant to speak with his father by telephone while his father located an attorney’s telephone  number. The defendant repeatedly stated that he would not do anything without an attorney present. Because the defendant was ultimately unable to  contact his attorney by calling his office at 1:48 a.m., Sergeant Scott Sleeman of the University of Connecticut police department and Gamache witnessed the  defendant’s refusal to blow into the Breathalyzer machine. This was recorded on a form A-44, which Sleeman signed as required by law.

The  defendant later stated that he would take the test, but Gamache did not administer it, stating that it was too late. The defendant also wanted his willingness to blow into the Breathalyzer machine documented before he was released at 2:44 a.m. The defendant’s request to take the Breathalyzer was within two  hours of when the defendant operated his vehicle, and the test would have been valid if Gamache had then given the defendant the test.

The court indicated to Seekins’ lawyer that it would instruct the jury that if it found that he refused the breathalyzer, they could draw whatever inference they wanted. His lawyer asked that the court then instruct them that they could also draw whatever inference they wanted from his willingness to take the breathalyzer. You already know which instruction was given and which wasn’t.

The defendant argues that the court’s failure to deliver the requested instruction deprived him of the opportunity to have the jury draw the inference that he knew he was innocent and was seeking to prove it by submitting to the test. This argument focuses on the issue of a defendant’s consciousness of  innocence in a jury charge regarding consciousness of guilt. Our Supreme Court has stated that a defendant must assert a recognized legal defense to be  entitled, as a matter of law, to a theory of defense instruction.

Accordingly, we conclude that the defendant was not entitled to the theory of defense instruction that he sought because he did not assert a recognized  legal defense at trial.

One side of the coin is tenuous conjecture a permissible inference, while the other (innocence) is not a recognized legal defense.

Bonus legal fiction: Of course, the court didn’t stop there. Not satisfied with so obviously tilting the balance in the State’s favor (yet another phrase!), the Court fell back on that venerable judicial invention, harmless error, which is just fancy talk for “yes, yes, we know you have rights and whatnot, but by Jove! you’re guilty as sin so we’ll be damned to hell before we let you go on a ‘technicality’ /sneer”:

In the present case, the court instructed the jury concerning inferences and circumstantial evidence as to a person’s state of mind. In doing so, as in Pinnock, the court told the jury it must consider all of the evidence. As in Pinnock, the instruction in the present case did not instruct the jury that it could not consider the defendant’s request to submit to the  test. Finally, the court’s instruction in this case did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.

We conclude with fair assurance that the failure to give the requested jury instruction did not substantially affect the verdict.

Well, how could it, when you’ve so conveniently lined up all the conviction ducks in a row (you may roll your eyes here). Look. I get it. Bad people get arrested. Convictions after arrest are a foregone conclusion. But is there need for such chicanery? Can’t we at least pretend to have a fair trial?

Click here for another legal fiction: the standard of proof

3 thoughts on “Legal fictions: a one-way street

  1. ambimb

    Great post. Harmless error = “the clearly guilty rule.” No matter what a judge or prosecutor or jury (or even defense attorney) does wrong in a trial, it’s going to be harmless error if dude was clearly guilty. Of course, the standard for “clearly guilty” is whatever the appellate court thinks it is. Awesome.

    Another legal fiction: “actual physical control” of a vehicle. What the hell is that? It’s a complete fabrication of some prosecutor somewhere, picked up by state legislatures, and now fed to juries on a daily basis to convict people of all manner of driving offenses. Of course juries don’t understand what it means; it’s a fiction. It’s also not clearly defined because then it can fit whatever set of facts the state has against your client. Yay!

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