The Two Most Loaded Words in a Courtroom

When Jeremy Richey at the ECIL Blog began the conversation about the “ethics” of the “guilty” person pleading “not guilty,” it struck me as another cocktail party question, like “how can you defend those people.”  But then the Texas Tornado, Mark Bennett, picked up on it, prompting Jeremy to go another round, and thereby catching the interest of former CLTV star Ken Lammers, who spun it into a question of virgin morality. 

It is now my pleasure to chime in (giving a gratuitous wink to Brian Tannebaum who has yet to contribute to the conversation but seems so lonely in his plea for recognition that I would be remiss in not mentioning him), Now that that’s taken care of, I can focus on the blawgversation at hand.

Bennett and Richey have made clear that the plea of “not guilty” within a courtroom is not defined by the public’s understanding.  From Bennett:

But I’ve been thinking: in addition to the fact that any boob who has ever sat through an episode of Law and Order thinks himself an expert on the criminal justice system by virtue of that experience, one of the factors that helps make serious discussion of criminal justice issues radioactive is that people think that words in the criminal justice system have the same meaning as in The World.

In The World, “not guilty” means “didn’t do it.” Not so in the criminal justice system, where it means, “the government hasn’t proven it.”

From Richey:


I could see where the person was coming from, but he was wrong. He was taking the words “not guilty” too literally. Those words do not operate in a vacuum; they are part of our legal system. Our legal system establishes a presumption of innocence for every person charged with a crime and places a burden on the government of proving the accused guilty beyond a reasonable doubt. When a person utters the words “not guilty” in court, all the players (such as the judge, prosecutor, and defense lawyer) understand that the person is requiring the government to carry its burden.

While some of the comments to these posts demonstrated the inability of laypeople, and even lawyers, to appreciate the levels of depth in these two little words, it was to be expected given how facile the public views criminal “justice”.  And Justice is a tricky word as well, since we all want it but fundamentally disagree on what it means.

When former defense lawyer turned prosecutor Ken Lammers entered the conversation, however, the issue became more interesting.


Once a defendant has broken the law, the personal moral responsibility for the act lies at her feet. As such, she acts immorally if she denies that responsibility. A plea of not guilty is an attempt to deny responsibility. Therefore, a plea of not guilty is an immoral act.

It’s an easy syllogism, but it’s subject to a million modifications imposed upon it by the real world. Competing moral obligations are often put forth by defendants that have nothing to do guilt or innocence.

If I understand Ken, his having abandoned the “ethics” approach in favor of morality, he has stripped the moral issue of its worldly trappings (such as the technicalities of proof, constitutional compliance and such) and reduced it to its most basic question: If you did the crime, then you must morally accept responsibility for your act.  If you refuse to accept responsibility by pleading not guilty, then you may be ethically and legally correct, but you are morally bankrupt.

Ken’s point is well taken.  It’s wrong.  Having spent more than a quarter century listening to people explain why they did what they did, I cannot subscribe to the notion that morality is either clear or absolute.  I realize that theologians may disagree, but they don’t chat with the same people I do.  At least not in the same way.

The ability of human beings to justify their conduct is quite an amazing thing.  It reflects relative priorities, which differ from person to person and, using the sliding scale of human rationalizations, explains choices that others make when we would not.  While I may serve as an arbiter of morality to the extent I believe that it can be explained adequately to a jury such that my client’s view doesn’t land her in prison, I do not pretend to hold the key to what is right and wrong for others.  For myself, of course.  For others, not even close.

My problem with Ken’s approach is that it presumes that there is an absolute morality.  There are times when a person engages in conduct so inherently evil, so malevolent, so inexcusable and unexplainable, that it transcends any debate about morality.  For this person, Ken would be correct.  But this is hardly the norm.  Few people fall into this category of pure evil, though some of the more self-righteous would believe this category to include everyone with whom they disagree.

From my vantage point, the vast majority fall within a relatively gray area of morality, where they possess a rationale for their actions that may fail to comport with what most people would consider moral choices but which is not so far outside the box as to render them evil.  Wrong, perhaps.  Stupid often.  But not quite evil.  And sometimes, their explanations make surprisingly good sense, though from the outside they seem awfully bad.

As both Bennett and Richey have already made clear, none of this applies to the two most loaded words in the courthouse, “not guilty.”  These words are not a moral statement, but a legal one, encompassing the plethora of issues and challenged inherent in the criminal justice system.  To utter them in response to “how do you plead” in the courtroom is never to be immoral, for morality plays no role in the proceedings. 

To measure the words “not guilty” by some other yard stick is futile.  It’s not meant to suggest a philosophical or moral position, no matter how many episodes of Law & Order someone has watched.  While these words may include a response to absolute factual guilt or innocence, we do not compel defendants to face the judge as they would their “maker” on the day of final judgment.  So it ultimately doesn’t reflect any moral position at all, and while some who stand in the dock are the very personification of evil, they too are fully entitled to state loudly and clearly that they are “not guilty” without offending anyone else’s God.

34 thoughts on “The Two Most Loaded Words in a Courtroom

  1. Jdog

    It does give a certain retconned* logic to the whole system. (And let’s remember that he’s talking about pleading “not guilty” at the actual trial thingy, not at the initial court appearance.) After all, since a person who goes to the trouble — and makes everybody else, except the defense attorney** go to the trouble — of the trial only to be found guilty will be given a harsher sentence than if he’d simply pled guilty in the first place, there has to be some sound reason behind it. Here it is: he’s ducking his moral responsibility, and demonstrating that by making everybody else demonstrate that he was, in fact, guilty.

    And it gets even more elegant, I think. By admitting his moral culpability earlier in the whole plea bargain thing, he would have deserved the lesser charge and sentence — he isn’t delaying his moral accounting, and the interest hasn’t accrued.

    And ever so much more so for the guy who accepts his moral responsibility even earlier, and flips on, say, his distributor, and does his penance wearing the secular version of a hair shirt: a wire.

    Which is why the drug dealer’s girlfriend deserves such a long sentence; years, maybe even a decade or more, longer than her boyfriend. It’s not, as I would have thought, that she’s handicapped by having nobody to flip on — her boyfriend already having flipped on his regional distributor. Nah. It’s that she isn’t accepting moral responsibility for the cocaine residue in the crack pipe under the seat.

    ______________
    * I’ll save you the trouble; see http://en.wikipedia.org/wiki/Retcon .

    ** For the defense attorney, it’s work, after all. The prosecutor and judge are on salary; the cop’s getting time and a half.

  2. SHG

    Ah, my cynical Renaissance-man friend, you have fallen into my definitional trap of using the word “morality”.  It must be distinguished from acceptance of responsibility, which in itself implies no moral flaw but is more akin to crying “uncle!”  Indeed, when a defendant takes a guilty plea, thereby eliminating the cost and expense of a trial, he is usually rewarded by receiving a lesser punishment than he might receive afterward.  But sometimes, it doesn’t quite work that way.  Sometimes, the most evil defendants are offered no incentive to plea, and left with no choice but to put the government through its paces.

    For those who are offered an incentive of lesser punishment, they are often induced into the amoral act of pleading guilty to a crime they did not commit in order to limit their potential downside.  So rather than admit moral culpability, they are engaging in the amoral act of deception in order to take advantage of a system that does not reward morality, but administrative convenience.  The 2 point reduction under the sentencing guidelines for acceptance of responsibility requires no heartfelt comprehension of the wrongfulness of an act, but the mere factual concession that an act which violates the law occurred.  Further, when the crime is malum prohibitum (say, something particularly horrible, defrauding the government by planting soy instead of corn while taking corn subsidies, then giving the soy away to the poor and hungry), is there any morally culpable act to concede?

    So retcon all you want, amigo, but the girlfriend who engaged in the morally reprehensible act of not ratting out the man who saved her child’s life after suffering PTSD following heroic actions in Iraq pushing him to seek solace in crack cocaine might be considered a heroine in some morally superior cultures. 

  3. Windypundit

    You two lost me completely here, but I have to wonder about this line: “defrauding the government by planting soy instead of corn while taking corn subsidies, then giving the soy away to the poor and hungry.” I have the horrible feeling you didn’t make that up.

  4. brian tannebaum

    What a silly little conversation, except the part about my blog.

    OK, I’ll bite.

    Not guilty is not innocent and guilty doesn’t mean “did it.”

    They are terms.

    When a defendant refuses to enter a plea at arraignment, the judge enters a “not guilty” plea on behalf of the defendant. Is the judge wrong to do so?

    As to the point of whether a “guilty” defendant should plea “not guilty?” “Guilty” is a term of art. “Guilty” is what a jury finds.

    When a defendant pleads “guilty,” the judge may ask “are you pleading guilty because you ARE guilty?”

    No one is ever asked if they are “pleading not guilty because they are not guilty.

    Innocent people are found guilty, and guilty people are found “not guilty.”

    Anyway, I’m bored with this conversation.

    Can we move on to whether lawyers should demand jury trials when they know the client is going to plea guilty?

  5. Stephen Lane

    In my jurisdiction our Supreme Court has held that a defendant’s prior felony conviction, that would normally fail the 609 balancing test, may nonetheless come in for impeachment purposes if the defendant had entered a not guilty plea and been found guilty at trial. Because pleading not guilty was obviously dishonest.

  6. Daniel B.

    I don’t doubt that you’re accurately reporting what the Supreme Court has held in your jurisdiction, but boy that strikes me as wrong. First, the defendant may have sincerely believed he was not guilty at the time he entered the not guilty plea. Maybe he didn’t know whatever he did was a crime. For example, a guy who breaks into his ex-girlfirend’s apartment to get back gifts that he gave her and is charged with burglary. He might (mistakenly) think he’s legally permitted to retrieve those items. Sure, he’s guilty, but the his plea of not guilty is not made dishonestly. Second, there’s the case of the innocent defendant. Even conviction after trial doesn’t determine the truth. It just confirms what a jury thought of certain evidence. Third, as others have pointed out, “not guilty” doesn’t mean not guilty, its a term of art in used in a courtroom to signify yes, proceed to the next stage of this proceeding consistent with the rights guaranteed to me under the Constitution.

  7. SHG

    That’s just awful.  What jurisdiction is that?  Seems like something to look into.  Of course, it isn’t that far afield of imposing an 2 point upward adjustment for obstruction of justice against a defendant who testified at a suppression hearing and lost.  If he lost, he obviously must have lied.

  8. Albany Lawyer

    Love your reference to the cocktail party question: How can you defend those people.

    Two reasons:
    1. “those people” — as if they’re somehow different from us. I did a blog post about that last month on my Stop Wasting Money blog.

    2. The question I usually get is something more like: “How can you defend someone you know is guilty?” I have a response to the cocktail question that stumps the questioner every time:
    Have you ever asked a prosecutor how they can prosecute someone they know is innocent?

    At first they think … well, they wouldn’t do that. But those of us who work in the system know it’s true.

  9. Mark Bennett

    On further consideration, I think it’s immoral to plead guilty, even if you are factually guilty.

    Why? Because your plea of guilty frees up governmental resources, some of which will be used to prosecute innocent people.

  10. Jdog

    I dunno, but I think those are utterly different issues. A guilty person — factually guilty, no redeeming qualities, no mitigating circumstances, a law that really ought to be a law — is entitled to a defense; nothing wrong with an attorney providing that. And, if that’s okay, it doesn’t get any less okay if the cop’s lying and/or the judge isn’t fair and/or the law is unreasonable and/or the punishment is insane. Or, for that matter, if the guy really didn’t do it.

    A prosecutor has an ethical obligation to, among other things, not prosecute somebody who they really think didn’t do it. (If you were to tell me that there are some prosecutors and defense attorneys who, from time to time, fail to fulfill their ethical obligations, I expect I won’t be utterly shocked.)

  11. Jdog

    Console yourself with the possibility that the resources will, instead, be taken away from the PD’s office (or the equivalent). You might not want to, err, Shirk from the possibility.

  12. David Giacalone

    I’ve also had laypersons (mainly older relatives) express impatience with people who plead “not guilty” and either seem really guilty or get convicted. Why, with the push over the past couple decades for Plain Understandable English in the Law, don’t we substitute words that better convey the actual meaning of the plea in the context it is used?

    Scott and Brian could surely come up with appropriate new terminology.

  13. brian tannebaum

    the plea of “not guilty” comports with what a jury finds at the end of a trial if the government has not proven their case. If we are to change it to something more palatable for the “law and order” addicts, I suggest:

    1. “didn’t do it” (so at the end of a trial the jury can find the defendant “didn’t do it.”)

    2. “not guilty by reasonable doubt.”

    3. “Presumed Innocent.” (assuming we still want to keep the presumption around, whatever is left of it.)

    All of these sound pretty silly, so I, being the traditionalist, would like to stick with the “not guilty” plea. Statistically, it is said more at the arraignment than at any other time in criminal court.

    By the way, have you read my blog? It’s one of Scott’s favorites.

  14. David Giacalone

    I’m not sure why “presumed innocent” sounds silly to Brian. It covers all the potential meanings of “not guilty,” is a familiar phrase for the public, and does not require the defendant to either lie about whether he did the acts charged, or incriminate himself by saying “good luck proving it.”

    What I find interesting is that the criminal law bar blames the public for being ignorant or too stupid to understand an inherently confusing phrase that is used in a way different from the general meaning given those two words outside the legal system. Maybe CrimBar should instead be asking itself why — despite a few centuries to fine tune and broadcast the explanation — it has done such a poor job helping the public understand the many meanings of the two words “not guilty” and why the ambiguity serves several policy purposes.

    Could it be because they like the confusion and ambiguity, and prefer to be able to tell the public the ambiguous and euphemistic claim of “not guilty” instead of giving the more accurate responses?

    “Not guilty” makes sense precisely because it means so many things — from “didn’t do it,” to “I’ve got some good defenses,” to “prove it, dudes.” The public needs to understand that under our system the defendant should not be put in the position of having to lie by saying “didn’t do it,” and shouldn’t have to say “did it but you gotta prove it,” because that would be self-incriminating.

    [And, no, I don’t get to your weblog very often, Brian. Please don’t take it personally. I have the time and energy for looking at about 3 weblogs a week — mostly because interesting weblogs end up sending me on too many tangents or just take up too much time. Maybe if I were still practicing law, I could surf the blawgisphere at my desk all day and pretend I’m working.]

  15. Waco Criminal Law Blog

    What does “not guilty” really mean?

    Ask anyone in the criminal justice system what a plea of "not guilty" means, and they will probably tell you it means I am putting the government to it’s proof. The first thing that happens after charges if filed is…

  16. SHG

    While I can’t explain why Brian thinks what he does, I would agree that “presumed innocent” isn’t an improvement, primarily because it bears the smell of a hypertechical approach to substantive problem. 

    As for the public’s misunderstanding of the many underlying meanings of “not guilty,” I would be reluctant to lay the blame on the criminal defense bar.  Consider our influence versus someone like Dick Wolfe or the media.  While it might behoove our professional associations to do more to promote public understanding of criminal law issues, the issues are framed and the language is defined by those with far greater reach.  We’re just trying desperately to tread water, and praying we don’t drown.

  17. David Giacalone

    I can’t think of anything less “technical” than the well-known phrase “presumed innocent,” and it certainly — for the public — doesn’t smell any worse than “not guilty,” which can only be understood by using technicalities, and which they know very often is a lie.

    I thought you believe that the legal profession — not to mention weblogs — having an obligation to help the public understand legal issues. Handing off this problem to others because they have a big microphones and tweeters and you poor little guys don’t even have a megaphone seems sort of lame. If nothing else, the CrimBar could take some of the time spent at blawgs to write up easily understandable explanations and try to get them to various parts of the media and the entertainment world.

    That’s all the nagging I plan to do today.

  18. SHG

    I suppose that it’s a matter of perspective then, as I can’t disagree with the fact that you think differently; I (and I suspect everyone else doing criminal law) see “presumed innocent” as not being a good choice.  But hey, we’re allowed to see things differently, right?

    As to the size of our microphones (not that size matters, ahem), don’t confuse blawgers with the officialdom of the criminal bar associations.  I don’t speak for anyone else, but I have no use for the various criminal bar associations, and believe that I’m the only person to have twice resigned from the board of the NYSACDL.  I expect nothing of them and they have always met my expectations.

  19. Bob Brandon

    And then there’s that term “probable cause”…

    (Because every Law-and-Order viewer must belief that “probable” invariably means “likely”.)

  20. Deborah

    Spend time in prison for a crime(s) you didn’t commit! While you lawyers spend your time wacking off about Legal Language, THINK about your client(s). WE are PEOPLE with family’s. Arrests, prosecutions and prison time for something we didn’t do just because we spoke out about our Government’s corruption is SICK.

    We are NOT a FREE society when the Justice System is as corrupt as it is. When our (whistleblowers) attorneys bow down to the Government and sell us out for your own vested interests, YOU obstruct/corrupt Justice.

    Spend all the time you want/need justifying your actions but the TRUTH is the truth. Dehumanizing people into ‘clients’ and not defending them to the best of your abilities especially when you KNOW the charges are bogus is CRIMINAL.

    Did you become lawyers to make MONEY or did you become lawyers to work for Justice? Both, right? When the scale becomes unbalanced, ultimately Justice is compromised.

    Did YOU lawyers ever stop to thing WHY your profession rates at the BOTTOM of public opinion polls? NO, it’s not because we didn’t win our case and blame YOU; it’s because lawyers lie, manipulate, are influenced by politics, are not familiar with OUR cases despite your claims that these details don’t matter in Law/Courts; they matter to your client(s). Acknowledge our pain and suffering. Don’t tell us ‘there no such thing as Justice’. Put the effort into our cases because at the very least it makes us feel YOU as our legal advocates CARE and we are not just a piece of ‘meat’.

    Yes. It does require that lawyers have some awareness of psychosocial dynamics as does EVERY profession so why do Lawyers feel/believe they don’t have to content with the “person” instead of treating us like we are a pain in the neck “client”.

    More and More Attorneys are getting into Politics and CORRUPTING the Constitution. You write vague laws with broad discretionay authority and loopholes giving those who Enforce the Laws the ability to use Bias, favoritism and nepotism and be influenced by Politics.

    Stand Up as a PROFESSION for Pete’s Sake and STOP being the cowards that you are working in the INjustice System.

  21. SHG

    Clearly you’re angry, but this rant offers no basis for anyone else to understand whether you are right, wrong or somewhere in between.  You clearly feel that you were not provided adequate representation, and you may be absolutely correct.  Or, you may just be angry with the outcome and blame the person you thought would protect you.  It’s impossible to say based on this hyperbole.

    Did you lose at trial?  Did you take a plea?  Not a clue.  Did you make your own decision or were you coerced into a choice by your lawyer?  Not a clue.  It sounds like you are angry at a particular lawyer and have chosen to lash out at all lawyers.  By doing so, your point is lost.  Your lawyer treated you like a pain in the neck?  Were you?  Were you impossible to deal with?  To please?  Were your expectations so unreasonable that no one could fulfill them?

    Not a clue. 

    I’ve left this rant up not because it adds any insight.  It doesn’t.  It’s the type of comment that make people think you’re just another nut.  But you clearly believe that your lawyer has failed you, and I want you to have the opportunity calm down and perhaps offer some actual information apart from your blind rage that will help to clarify why you are so angry so that we can understand your point.

  22. SHG

    I take great comfort from that. 

    Funny thing is, I remember the Woodward/Bernstein days when journalists were the epitome of integrity.  Curious what “fair and balanced” has done to the public’s perception.  Some days, I seriously wonder if this is what it looks like in a society in decline, with the few theoretical “protectors” perceived as the threats.

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