Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON PERSPECTIVES IN THE CRIMINAL JUSTICE SYSTEM (Part Three-B)

One will never be successful in understanding the criminal justice system, be they lawyer or client, until the varying and conflicting perspectives are understood. The judge, police officer, prosecutor and defense attorney approach the same case from different viewpoints. Therefore, what is “right” to one is not necessarily “right” to the others.

It is therefore not usually a question of the somebody intentionally doing the
“wrong” thing. It is not a simple equation of good vs. bad. As such, testimony which conflicts with other testimony need not be a lie.

Ever play a game of “telephone”? We seldom witness and remember facts. We remember feelings and facts.

As much as math and I seldom get along, let’s put it thius way:

Feelings + facts = perspectives

The prosecutor assumes that the defense is guilty. After all, her witnesses, particularly police officers, said so. Police officers are held to a higher standard and so the assumption is they always live up to that standard and never lie, never mis-interpret.. They are never dishonest. The defendant, whether or not she can convince a jury, is, in fact guilty. Nothing else makes sense.

The defense attorney is charged with doing all he can, within ethical and legal guidelines, to defend the defendant. He cannot assume that the witnesses against his client are telling the truth if his client tells him that they are lying. Sure, a defense attorney has a gut reaction to that client as to how reliable he may be…but we are only human and humans tend to see what we want to see. After spending a certain amount of time in the system, one experiences instances where police officers are in fact undeniably lying. Not all. Not always. But it happens. A lot. But then, it is the officer’s word against yours…and who is going to believe you? You are a defense attorney!

And what about those police officers? Did they set out to screw innocent defendants and break the law? Sometimes. But not typically. To them, it is usually a very simple situation. The defendant is a bad guy. Otherwise, he would not be wearing the bracelets of shame.. The defense attorney is there to try to convince everybody that he, the officer, acted in a crooked way and is a liar. Or maybe stupid, screwing up the Rules of Criminal Procedure.

Particularly when it comes to search and siezure.

Sometimes, a little innocent stretch of the truth is necessary in order to pursue the greater truth…the defendant is a bad guy.

The judge? The judge has seen many cases where he or she feels that justice was not done. He has caught many people, often defendants, in lies. The judge is not supposed to operate simply by his or her own belif. There are rules which bind him. What she must do is keep cases going, and closing, so that the docket is moving and the system does not become completely overloaded.

There is another thing, particularly in cases where there is media attention…how the case will play to the people outside the courthouse. Simply put, the truth is that the perception of being harsher on crime gets a positive reaction. Being overly harsh is no problem.

If the judge is perceived as siding too much with the defense, there will be a call to remove him or her from the bench. If the District Attorney’s Office does not appear tough enough on crime, then that District Attorney will be out of a job.

These are some, but by no means all, of the things which effect the day-to-day reality experienced by those who spend their days in the criminal justice trenches.

There should be no surprise, therefore, that the players view the same case differently. What is true for one or more of these participants may not be true for the others. That does not necessarily make it a lie.

Further, all are human and so are subject to mistakes. Some mistakes are mistakes which anybody could make and are understandable. Others, such as in the case of the Deputy, are mind-numbing as to how such poor judgment was possible for a man who could walk and chew gum at the same time.

Our system, however, does not seem to accept that these realities exist. That is why a police officer’s word is usually sacrosanct. Therefore, it is a bigger deal when the officer undeniably screws up.

And, if it is not undeniable…it will be denied by all on every side but the defense.

The system, as far as this Boston criminal attorney can see, despite what it is supposed to be based upon, assumes that criminal defendants are guilty. Otherwise, rules like the federal discovery rules and many bail and probation hearings would not exist the way they do today.

Although it may seem self-promoting, the player who has a clearer view of reality, I think, is the defense attorney. The defense attorney, if he or she is any good, accepts nothing at face value. The defense lawyer looks at everything through the eyes of a paranoid.

Of course, what that attorney sees…he probably can’t tell you. Attorney-client priveledge.

Have a great, safe and law-abiding weekend!

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