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.

CRIMINAL DEFENDANT, PROSECUTOR OR JUDGE…WHO HAS THE CORRECT PERSPECTIVE?

In my last blog, I told you that I would address a second issue which came to light (again) from a recent SJC decision. The decision involved a murder case and the issue of exculpatory/informant evidence that had not been disclosed to the defense.

Of course, I had also indicated that this second part of the posting would be presented on Monday. Today is Wednesday.

Hey, look…I’ve got clients to defend…!

Well that’s my perspective on that subject.

In terms of the accused in the criminal justice system, one might be surprised that the prosecution would not give all possible evidence to the defense immediately. After all, it is the defendant who is facing the loss of liberty. We have been brought up to believe that the prosecution is the good guy in the trenches. Surely, the good guys would not play dirty or try to hide evidence…right?

Well, even if they would, a judge would stop them…right?

The sooner you understand about the competing interests of these participants, the sooner you will not be surprised by seemingly contradictory realities dwelling therein.

    Attorney Sam’s Take On Competing Goals…Part One of Two

Everybody seems to agree that a criminal defendant is entitled to a “fair trial”. In “lawyerspeak”, however, a “fair trial” is too general to have much of an independent meaning.

Let’s take the defendant’s view. It is basically the view most of us assume when we come into contact with the system for the first time. The assumption is that the prosecutor and police, who only want to find the truth, are going to give over their whole case, presume the defendant to be innocent and quake in fear that they may never be able to establish the defendant’s guilt and satisfy that huge burden of proof beyond a reasonable doubt.

Well, the prosecutor’s view tends to be a bit different from that.

To the prosecutor, the truth has long since been found. The defendant is guilty as charged. The only thing left to do is prevent said defendant and his tricky defense attorney from thwarting justice and preventing the Commonwealth from winning at trial.

“But, Sam, how do they know the truth in terms of innocence or guilty?”

Simple. The police and/or complainant told them so. Case closed.

The prosecutor’s belief is that turning discovery over to the defense, although it is necessary at some point, is only going to give the defense attorney a chance to figure out how to poke holes in the Commonwealth’s case. That would include manufacturing evidence to counteract it and dirt to throw at the Commonwealth’s witnesses. Another threat is potentially from the defendant himself…there may be a safety concern that the defendant will have the witness threatened or killed in order to prevent the adverse (yet presumed truthful) testimony from seeing the light of day.

There is another consideration as well. It will not shock you that trial attorneys do not like to lose. We are advocates. We are often judged on win records. The same is true with prosecutors. To be sure, everybody has to lose sometimes. But it is certainly not great for either mental health or career aspirations. This truth is the same regardless of what side of the aisle we represent.

As you may know, I have been on both sides. Take my word for it.

“It sounds like it is a real battle then…both sides out to win.”

It is.

“Well, aren’t their ground rules? At least a referee?”

Happily, yes there are.

There are various rules, statutes and prior cases which speak to the various issues that come up in a prosecution, from arrest through trial and beyond. However, although one might expect that these rules and laws are absolutely clear and absolute, they are not. These are not rules where “one size fits all”. Probably because of the competing interests and perspectives. You must remember that the defendant is not the only party in the case. The Commonwealth has the right to a “fair trial” (again, whatever that means) as well.

Generally, both sides end up arguing how they believe these rules and laws help them in whatever particular issue comes up. As you would assume, the referee who makes the ruling as to which side is more correct than the other is the judge.

The judge, of course, has his or her own perspective. The judge’s job, among other things, is to keep the cases moving. Get them done. However, the judge is also duty-bound to follow the various rules and make the correct decision when these other issues when the parties disagree .

Keep in mind, though, that the judge is not bound by what the parties, even if they are united in some issue, want. The judge (regardless of his or her personal beliefs) is supposed to be impartial and beholden only to the laws and, maybe, the spirit of the laws.

To use the Commonwealth v. Bonnett fact pattern as an example, the issue was the right of the defendant to find out about the informant and what he had said about the actual killer. The government argued that the defendant was not entitled to that information and that the issues of safety for the informant as well as handing the defense a new evidentiary weapon to which it was not entitled trumped the defendant’s rights to discover the information.

The court ruled.

No court is beyond making an error, especially when balancing various rules laws and interests. So, there was an appeal. The SJC found that the judge had made an error.

Such opinions are something else related to a judge’s perspective. It does not look particularly good for a judge to make such a mistake.

It happens, though. This is why we have the safeguards of appeals and appeal courts.

The melding of these various perspectives are said to make the system work.

The key for you, my reader, is to never forget that these perspectives exist. They exist at all times in all cases.

This is why you want an attorney who understands them and knows how to handle them when the need arises.

It’s called experience and, after a while, expertise.

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