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 THE CRIMINAL JUSTICE PATH OF LEAST RESISTENCE

Perhaps this posting should be entitled, “let’s put it this way…”. But then, I am a lawyer, so folks expect me to do things like answer a simple yes or no question with a 157 word response.

We have discussed the effects of public opinion on the criminal justice system many times. A couple of days ago, I was talking to a client about what might happen during a hearing and an old tried-but-true term leapt out of my mouth and into the telephone. By the time my brain caught up with it, I realized how descriptive it was of the judicial system, particularly when it comes to criminal justice .

And so it was that this Boston criminal lawyer rediscovered the concept of “the path of least resistance”.

In a nutshell, those five words capture the issue about which we so often speak. In this circumstance, consider public opinion to be the resistance indicated. The so-called path would be the path a case takes. Sometimes, that path is straight and well-paved. Sometimes, however, it is very windy and has many obstacles, holes, hills and other debris. This debris can be seen to slant and obscure parts of the path because of opinion, misunderstandings and prejudice. In short, the “resistence” is the media response.

After all, what can you expect from a system which places human beings in charge of finding “truth”?

Well, of course, it is more than that. Our system has developed a handicap in its search. Namely, it has certain potential threats which often inspire fear-based decisions on what “truth” is. We have discussed these many times. It is that “what if” complex involving the next day’s media accounts.

The perception of public opinion was never meant to decide criminal cases. That was supposed to be done by cool and fair-minded deliberation…not mob mentality. However, today, we are living in the era of intolerance and pre-supposing what the truth “must be”. Judges are investigated if they seem too pro-defendant (a bias on the other side is no problem). Parole Boards are disbanded and shamed if they release someone and something goes wrong. Politicians, including those involved in criminal justice, are “soft on crime” weaklings should they not show an assumption of guilt while we congratulate ourselves for having a presumption of innocence.

And so, we come to the criminal justice definition of following the path of least resistance. In other words, “What decision can I make that will not get me in trouble or even cost me my job?”

Unfortunately, it can be summed up in one word…”guilty”.

Not an actual finding of guilt, but it sends folks down the pathway toward it.

For the clerk magistrate, as well as the police officer, it is the finding of probable cause.

“But Sam, isn’t probable cause a very low threshold?”

Sure it is. On the other hand, it is still a threshold. At the very least, the elements of the crime have to be supported by some kind of evidence. I have seen such hearings, in fact one in the media very recently, in which there was no evidence supporting the allegations, but the clerk found probable cause anyway. I have seen arrests made simply because the allegation was made although there is actually reason to believe that the accuser is the aggressor.

“So, won’t the judge or the prosecutor throw the case out when it gets to them?”

Nope. For the prosecutor…it is the same reason, plus his/her supervisor all the way up to the actual District Attorney. For the judge, it is actually harder to make the decision to dismiss even if the court wanted to. A judge cannot simply dismiss a case at the onset because the matter seems ridiculous. There are specific reasons the court must find in order to dismiss a case.

“What if the judge went out on a limb and dismissed the case anyway?”

Then, the prosecution would appeal and point out to the press how pro-defense that judge must be.

And so we come down to the same problem.

And so what does this have to do with you, my reader, assuming you have not yet been accused of something?

Forewarned is forearmed. Be aware that, should an allegation be made against you, you need to take it seriously. Any allegation.

It is human nature to follow the path of least resistance. As I have explained many times, the participants in the criminal justice system are human beings…just like me…just like you.

Retain the services of a criminal defense attorney with whom you feel comfortable and who knows this particular path well. Is it a guarantee that said attorney can end things before they really begin?

No.

But it is the best thing you can do to have the best chance in a successful resolution.

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