April 13, 2008
Legal Department
Presumed Innocent
Reading a novel is no substitute for advice from a lawyer, but sometimes a good courtroom thriller can show you something important. (My lawyer readers may disagree with me...) A few weeks ago, I wrote about an interesting but unethical police trick that I learned from A Cinderella Affidavit
This time I want to talk about some lessons I learned from a scene in Scott Thurow's first novel, Presumed Innocent
As the book opens, the protagonist, Rusty Sabich, is a married man who's been having a secret affair with a woman named Carolyn Polhemus from his office. She's found dead, murdered, and he is wrongly accused of the crime.
The prosecution's theory of the case is that Rusty was having an affair with Carolyn, something went wrong, and he murdered her. However, his lawyer reviews the evidence and points out a surprising weakness in the prosecution's case: There's no evidence of the affair.
This means that Rusty could be acquitted because the prosecution can't prove the affair, even though Rusty knows they're right about the affair.
The situation is purely fictional, but that scene opened my eyes to something that seems pretty important: If you are wrongly accused of a crime, your factual innocence may not be the only thing wrong with the case against you. You could be found not guilty because the prosection can't prove some fact to the jury, even though you personally know it to be true.
(That may not seem very honorable, and you may prefer to prove your actual innocence, but as far as I'm concerned, the consequences of a conviction are so awful that I'll take any way to get free and clear.)
This possibility has three practical implications:
First, don't talk to the police. Use your right to remain silent. If Rusty had talked to the police before seeing his lawyer, he might have admitted the affair without realizing he was giving up an important part of the case against him. No matter how much the police already seem to know, they may still be missing some crucial element of the crime. Your trial could turn on such details as whether you knew the house was occupied, whether you brought a weapon to the scene, or where you live.
Second, get a criminal lawyer involved as soon as you can, even before you are arrested if possible. In the book, Rusty didn't realize the police had no evidence for the affair because he knew the affair had happened. You need somebody with an outside view of the case to notice these things for you. Also, unless you are an expert at criminal law yourself, you need somebody who understands where the landmines are.
Third, this sort of thing is why it's a bad idea to testify unless you have to. In the novel, Rusty is essentially the only living person who knows about the affair. If he testifies, the prosecutor can ask him point blank if he was having an affair with the victim, and he's supposed to tell the truth. In real life, the traps won't be that obvious, but you can bet the prosecutor will try to lead you into every one of them.
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