The burden of proof is also a defense burden

The burden of criminal proof is also a defence burden. A Brazilian case.

 

The tremendous trial in Brazil by the Supreme Court, the Brazilian Criminal Case 470 — known as the “ mensalão” or "big monthly payment" regards the purchase of legislative support by member of the executive power — and it has had the merit of raising greater attention to the burden of proof in criminal court. It got the attention of not only legal practitioners, but also journalists and hundreds of thousands of intelligent citizens who are — passionately and seriously — watching the case on television. 

The pedagogic side of the judgement cannot be denied, it can also reveal — and here the teaching continues — the existence of small human failures of the professionals dealing with this difficult and slippery activities, be it when accusing, defending or judging others. It needs to be noted that in the entire process, past events are examined; events that are already hidden and destroyed by time and which were not witnessed by the professionals acting during the judgement: prosecutor, lawyer and judge. In the trial, an attempt is made to reconstruct facts that were neither seen nor heard by those who sternly debate about a possible criminal act, based of proofs, which can be trustworthy or false. Or both a mixture of truth and untruth, given that witnesses are not always incorruptible when announcing their 'truth'. And not only the witness: the victim — if alive, of course — can lie too. So can criminal experts too, even if rarely. 

Everything can be distorted in the hands of men. Hence the old saying "the judge is the expert of the experts." Only he is in a better position to evaluate all the evidence, unify all the pieces of the puzzle. Those who have already been a judge when expropriating residences know that the property specialist indicated by the one to be expelled from his patrimony will almost always conclude that the residence is worth more than the value given by the side expelling or even more than the value given by the expert appointed by the judge. The expelling side, on the other hand, is often sure that the property does not value that much. 

Despite many dangerous "philosophical" issues concerning the perfect reproduction of past facts under oath, the truth must, at all costs, be searched, investigated, analysed and finally framed in legal descriptions, which, paradoxically, are today sometimes as drastic as extensive and abstract. 

One of the most important theoretical debates in the "big monthly payment" — not only between the Attorney General and lawyers, but also among the judges themselves — is whether the defendant has or has not a duty to prove his innocence. One of the Ministers insisted that the defendant does not have to prove anything, not even his/her innocence, only the accusation, he says, has an obligation to produce evidences. 

This extreme position, also embraced by American jurists — too easy for the defence — cannot prevail morally and is extremely damaging to the defendant himself when the evidence of the prosecution convicts him. Ask yourself: if the defendant is innocent — despite the proof of charges showing the contrary — would it be up to the prosecutor to search of new evidences that proves the accused’s innocence eliminating any doubt? Would it be up to the prosecutor to produce evidence first against, then in favour of the defendant while the defendant and his patron just watch polishing their nails? 

As I said, prosecutor and judge deal with information not seen nor heard personally, but gathered in testimonies, documents, surveys and words spoken by the defendant in court — when he/she does not refuse to talk. At that point — in order to know the facts more closely — the lawyer has a huge advantage over prosecutor and judge because the lawyer has the privilege to hear directly "from the source", the client, what actually happened; when the client, of course, tells the truth. Not always, it is worth mentioning, because sometimes the client lies to its own defender, thinking that appearing innocent in the eyes of the lawyer would make the lawyer fight for his innocence with more vigour and sincerity, impressing the judge or court. The conviction of innocence persuades, it transpires in the voice and body language of the defender. 

It takes a lot of theatrical talent to pretend outrage. The pretense, like a boiling bubble of consciousness, always emerges, driven by an innate ethic. Nelson Rodrigues, a Brazilian author, says that, when he was a rookie crime reporter, he attended a place where a man had just been violently killed. The widow desperately wanted to die. She screamed and tore her hair. She refused the traditional offer of water with sugar offered by her friends. Finally, somewhat dehydrated by many tears, she accepted a glass of water, but before drinking she asked: "Is this filtered?"  

As I said, it would involuntarily stimulate a general impunity, if the judiciary, by its representatives, had to sustain that, in absolute terms, the defendant "does not have to prove his innocence", thereby taking advantage of the fact that prosecutor and judge were not present when the crime occurred. Which is legally impossible anyways, because if they were witnesses, it would mean they could not act as prosecutor or judge. 

It's too comfortable, as I said, and harmful to the interests of society, in any country, that the accused, confronted by the police or in court, can remain silent, indifferent, when some facts incriminate him, and this silence cannot be taken as any inference contrary to his innocence. In the investigation phase, the silence is still tolerable, because at that stage the guarantees of the suspect are not yet present. In court, however, there is no justification for the voluntary muteness. I repeat: the defendant cannot be forced to speak, but silence results in some loss of belief in the accused. At least he/she should lie, because by lying, the version will be investigated and, being untruthful, it will inform the jury of the defendant's character, a factor that always contributes to the understanding of truth. 

The criminal procedure, contrary to what many say, was not only designed to protect the defendant (David) against the abuse of state (Goliath). Nowadays, the state in countries with lax laws and jurisprudence is perhaps more "David" than "Goliath"; such is the strength of organized crime, or even disorganized crime, when the laws are too soft. In Brazil, increasingly, "children" of seventeen years are recruited by criminals to steal and kill, taking advantage of the Brazilian legislation and income inequality, fed by fast-growing consumerism. 

The process was also invented to protect society, which has an interest in moving away from neighbourhood people killing, stealing, raping, or slandering, etc. Therefore, it is of interest for the common well-being — including the defendant, remotely, as a mere citizen — that the accused answers anything when asked by the judge, even saying that he knows nothing, saw nothing, heard nothing, practised nothing. Staying silent, he lies by default. He is not bound to incriminate himself. He only needs to speak, his speech functioning as a breathalyser. Who refuses the breathalyser test when in traffic, is implicitly confessing that he drank. In fact, deep down, being silent about the facts should be — with or without law, case law or doctrine — self-accusation by the defendant, leading the judge to think — "Besides criminal, he is arrogant ... ". Thus thinks the judge, while he will or not write as such in the sentence. In short: being silent indicates evil. It's a "push" towards condemnation. 

Defendants can be convicted on circumstantial evidence and legal circumstances. Otherwise there would be a guarantee of impunity for the most serious crimes. Planned crimes — the most harmful to society — are always committed in places and times chosen by the criminal. Without witnesses. I will provide an abstract example, which shows that evidence and circumstances permit, legally and morally, condemnation, unless the defence makes an effort to prove the contrary. 

Let's think about a hypothetical citizen — henceforth "Romeo" — who has no resources of his own, and has a relationship with a rich and mature woman. His companion supports him. Having been in love with another woman for months — young, beautiful but ... poor — he is unhappy with the impossibility (without tremendous economic loss) to get rid of the relationship he has with the boring companion and live with his beautiful girlfriend. She, however, very practical, has made ​​it clear that she does not want to be just a "twig". The business philosophy of existential beauty, transmitted through the old and painful ultimatum: "Either she or me!" 

After considering and planning the best solution for his dilemma, the anguished Romeo, without a criminal past, invents a plan that guarantees success: He invites his mature companion for a long romantic walk through a mountainous region that she always wanted to visit. She happily accepts the idea — she had been already suspicious of the coldness of her boyfriend — and two days later they leave by car for their second honeymoon. 

Arriving at the edge of a cliff, away from anyone's view, Romeo stops the vehicle and asks his companion out of the car to look at the beauty of the river and rocks a hundred meters below. Even though afraid of heights, the woman approaches the edge of the cliff and in that moment she is pushed to her death. No witness. Then, unkempt, almost "in shock", Romeo seeks the nearest police station and reports, desperate, the sad tragedy that resulted from a mere slip of the innocent lady. He complains, with wild stare, saying that deep down he feels guilty because, distracted by the beauty of the landscape, he did not see the woman approaching the brink. The apparent desperation convinces the sheriff, the clerk and even a street vendor who was, by chance, at the police station. 

It happens that the unfortunate victim has a suspicious sister. She finds Romeo’s version strange because her sister had a notorious fear of heights and therefore would have never accepted to even live in an apartment above the second floor. Why would she then dangerously approach the edge of a cliff? Besides, her dead sister had already told her that, at the suggestion of Romeo, she had made a substantial life insurance, instituting her partner as a beneficiary because he earned little, was poor, had no assets and no special skill or training. Finally, this sister mentioned to the sheriff that the deceased had told her privately that she was afraid that her companion was having "an affair". The police, alerted — "cherchez la femme!" — decided to research the background of the situation and found that three months before the "slip", Romeo had actually arranged a bulky life insurance for his companion figuring him as beneficiary. 

After tapping his phone conversations, with judicial authorization, the police did not actually hear any express admission of murder, but caught snippets of conversations of Romeo with a certain girl; conversations whose content was not compatible with the moral pain he pretended to feel at the police station when mentioning the sad accident. Continuing the investigations, including listening to the lover of Romeo — who apparently did not take part in the sinister plan — they learned that the accused had visited the lover the day after the alleged accident, not appearing to be shaken, quite the contrary. The police concluded the investigation by saying that all led to believe that the woman had been thrown to her death by the man who wanted four benefits with a single push: freedom, money, love pleasure and impunity. 

Called to testify, both in the investigation and in court, Romeo invoked his constitutional right to remain silent: — "Not just because I prefer" explained lying, "but because I was guided by my lawyer to do so." The evidence against him was therefore only indexing, dependent only upon the ability to deduct by the judge. 

Would the reader, in this hypothetical case, as a judge or jury, absolve the defendant only because there were no witnesses or direct evidence of the crime? The defence argues in their closing arguments that a slip can always occur anywhere, even on the brink of precipices. The argument concerning fear of heights would not be relevant because some people strive to overcome their irrational fears. They do so by approaching that fear. Certainly — says the defender —  that's why the victim dared even to please the accused by doing something she normally would not do: spy bravely into the abyss. As for the life insurance — would continue the final piece of the defence — it was merely a loving concern from a thoughtful companion, always worried about the future of her beloved if she was no longer there, as it came to happen. Finally, the fact he has a love affair, kept secret, had nothing to do with the accident. If the beautiful new girlfriend waited for a decision from Romeo, a decision of permanent connection, it existed only in her head, not in his, he had only a passing enthusiasm. For these reasons, the defence plead for discharge, claiming at least a "reasonable doubt." 

In theory, of course, there's a very remote chance that the accused, could be telling the truth. He was just a tremendously unlucky victim of coincidences. However, judges would probably condemn him. If the case was tried by a court of law it is foreseeable that the judges do not deny the strong circumstantial evidence against the defendant or easily accept the explanations of his attorney in closing arguments. They would say, among them: "This lawyer is smart, but everything he said is nothing but smoke. Where is the proof of his conjectures? " 

The "blame" for the conviction of the defendant in this case would, however, be on the defendant himself, remaining silent and not trying, for convenience, to prove his innocence.  

Imagine — continuing the example — that the lawyer was diligent and could confirm, with testimonials from locals, that the slip point was much sought by tourists because of its special beauty. These residents say, for example — without lying — that two other people had fallen into the abyss, right there in the last two years without arousing suspicion, and because of that the local municipality had already determined — before the fall of the defendant's companion — that a short wall should be built there, preventing further accidents. The work had not yet been done due to lack of funds. If experts on the defender side would also prove the existence of a real danger of a slip at that point, it would quite help the accused. As for the fear of heights, the lawyer, talking to people who knew the victim, would know that she had already told her friends that, after watching a movie on television, on overcoming irrational fears — snakes and spiders, for example — she said her intended use of similar techniques to approach fear. As for the life insurance, perhaps the broker, could testify, without lying, saying that the victim, when she called to make the insurance, would have explained that she did this for free initiative, without any pressure or suggestion of her companion. What about the suspicion of her sister; her word was suspicious because, in the contract, in the event of death of the unfortunate lady, the compensation would be paid to Romeo but if not, to the sister. If the defendant was convicted of murder, he could not receive the money from the insurance. The compensation would be then paid to the second beneficiary. Finally, as for his girlfriend, she was spiteful to testify because Romeo had told her before her testimony that he had lost his enthusiasm for a future relationship "asking for a break." 

With this revolutionary new evidential situation, the chances would be that Romeo escapes conviction. One question remains: Would the prosecutor ask more questions to prove the innocence or the guilt of the defendant? 

Summarizing and repeating: the accused must not prove his innocence, except when the evidence of the prosecution incriminates him. When incriminating, it is his obligation to produce evidence of his possible innocence. And silence contributes to cast doubt on his innocence. 

Actually, neither the prosecution nor the defence are physically "forced" to produce evidence. They will just suffer the consequences — logical and fair — of their own laziness: the accuser allowing impunity to a criminal and the defender seeing his client — even possibly innocent — being sentenced. 

Abraham Lincoln once said, talking about the toughest presidential decisions, that ethics is summarized as follows: after examining the alternatives he decided according to what would reassure his consciousness. If he "felt well" with the decision, this would probably be the best one. At this point, the moral intuition has great help. With good judges it is certainly the same. 

I beg your pardon in the above example because of the transformation of a legal issue in small detective story. Incidentally poorly constructed, because, as I said in the beginning, there was a crime, but it could have been a mere slip. In this detail I slipped. Fortunately, not in the edge of a cliff. 

For good didactic reasons, I shall be forgiven for mixing literature genres.

 

(01-9-2012)