Amanda Knox, the American student on trial in Italy for the murder of her roommate, is scheduled to testify today.  The case is a travesty from the word go, for far more reasons than a blawg post can contain.  So much is different in the Italian legal system, where many of the protections we take for granted, or rail about when failed, simply don’t exist.  It’s not that it’s an unjust system, as much as it’s not our image of a just system.  No, it sucks.

But there’s one aspect of the “proof” against Knox that is eerily reminiscent of a common effort to convict here in cases where the evidence of guilt is missing: Character assassination.  In the Knox case, part of the evidence of her guilt is that she failed, in the opinion of the police, to behave the way they think she should have after she was told of her roommates death.  She didn’t do it right.

This brought back a rush of memories for me, as I can vividly recall being asked for my advice by a client years ago as to how to behave after the death of a spouse.  There’s no book on the subject, no rules to turn to for answers.  Miss Manners never touched on the subject of how to behave after an alleged murder so as not to appear “inappropriate”.  I certainly couldn’t answer the questions.

The police, however, seem to know exactly how people should behave.  Where they got their rules from I don’t know.  When asked, I was told that it was based on “typical behavior.”  This was unsatisfying, both because I don’t believe it, that there is any typical behavior, and because it fails to account for the fact that we are all individuals and react differently.  The cops scoffed.  They knew.  It never ceases to amaze me how much they know.  They know everything.

As is normally my way, I place the onus on the judge, as gatekeeper of trial evidence, to preclude testimony that is facile and baseless.  I’m often disappointed in how wide the gate swings open.  One of the great ironies of trial work is that the less evidence of guilt there is, the greater the latitude of a judge in allowing bad evidence.  In other words, the scrutiny is reduced in direct inverse proportion to the extent of viable evidence.  It tends to make weak prosecutions more dangerous, as they are bolstered by increasingly unreliable evidence.  And of course, unreliable evidence is the stuff that jurors love best.  It comports with their decision-making abilities, and satisfies their prejudices.

So instead of hard evidence, of the sort that can be challenged and questioned and disputed, the case is made up of soft, ever-flexible evidence about the police’s perception of how someone acted.  There’s no way to cross-examine a witness on this, as it’s all about personal opinion, colored testimony, vague yet damning characterizations.  And the jury has no way to assess this testimony.  They don’t know what the “typical” behavior should be.  It’s not like a lot of us have the experience behind us.  If the cops are allowed to say so, how is a juror supposed to disagree?

So why doesn’t the defense put on its own expert to testify what the typical behavior should be?  Ah, because that wouldn’t be material.  The police are testifying that the defendant’s behavior was all wrong.  The defense expert would be testifying as to why the defendant’s behavior is not inappropriate.  It’s speculative.  It’s argumentative.  It’s without factual basis.  Take your pick.

There are two things you can count on when you hear it said that the defendant failed to act appropriately.  First, it’s utter nonsense, since we are all the product of a different mix of psychological influences and personal motives, none of which are known by those who would judge the propriety of our conduct.  Second, it means that the prosecution has no real evidence and is constrained to reach into the gutter for garbage evidence.

And remember, the worse the evidence, the wider the gate swings open.