Remember the film “Minority Report” with Tom Cruise? Cruise worked for the Department of Pre-Crime. Pre-Crime was able to determine who was going to commit crimes in advance, so they were able to send Cruise out to arrest and lock up people before they had done anything wrong.
This is called preventive detention. It is unconstitutional; and is a mark of a totalitarian state. The US has been doing it for years. President Obama recently announced that–while George Bush had gone about it in a haphazard way–Obama would formalize the practice through a new “legal” framework.
This prolonged imprisonment of suspects in the “war on terror” goes on even though the government cannot prove that the prisoners have committed any crime. [Note: as a point of reference, keep in mind that in the State of Missouri, no one can be held without formal criminal charges for more than 24 hours–even if the person is suspected of murder]
Let’s even up the books and note some advantages that the defendant has in a criminal case.
In the last post I mentioned that the accused gets to “hide” evidence in his possession that would tend show him to be guilty. And he CAN appeal a loss, because, while double jeopardy prevents the state from re-trying him, he can ask for a new trial. If he wins the appeal he may get one.
Some other differences relating to the defendant
He doesn’t have to testify; and no one can even mention to a jury that he hasn’t testified. A smart defense attorney might even leave the impression that the “mean old state” didn’t even let allow him to tell his story.
The whole burden is on the state to prove the case. If the defendant can raise a single reasonable doubt about ONE element of the state’s case, the jury must acquit the defendant.
The defendant gets to choose between having his case decided by a judge or a jury. That is important in most cases.
The defendant gets to choose (in many cases) between having his punishment decided by a judge or a jury.
The defendant cannot be convicted unless all 12 jurors agree. While the principle that a verdict must be unanimous applies to both “guilty” and “not guilty” verdicts, this rule is really in favor of the defendant.
My experience is that unless a jury can resolve its differences fairly early in the deliberations, the jurors holding out for a “not guilty” verdict tend to be more tenacious, while the “guilty” votes seem a bit more likely to yield, as in the movie 12 Angry Men.
As I’ve mentioned in another post, even the prosecutor and the defendant’s attorney are treated differently if they make an error in the trial. The prosecutor’s mistake is called “misconduct,” while a bumbling defense attorney is called “ineffective.”
The question of fairness and balance really comes down to the question of whether our courts are successful in convicting the guilty and releasing the innocent. That is an issue we will never resolve.