Over at A Public Defender, Gideon takes on legal fictions and asks the question, why are they always created to favor the prosecution?

Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.

So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.

This is another smack in the face of the presumption of innocence.  It presumes actions and reactions that can be somehow characterized in a way that supports the prosecution as consciousness of guilt, while simultaneously assuming that any conduct which would support a showing of innocence to be a product of some crafty defendant putting on a show to manufacture a defense.  Guilty if you do, guilty if you don’t.  Guilty.

On either side of the equation, the use of inference from conduct to prove what’s going on inside somebody’s head is a convenience for the court.  As the court instructs the jury, no one can really know another person’s intentions, so we infer intent from conduct.  A person is presumed to intend to do the conduct in which he engages. 

Fair enough, as far as it goes.  But no farther.  Point a gun at someone and pull the trigger, and it’s fair to say that you intended to shoot them.  But it doesn’t tell you why.  Still, it’s not all that hard to piece together enough background to determine whether the purpose is to defend oneself from a vicious attack by the shootee, or to take the victim’s wallet.

When we get to issues like consciousness of guilt, however, the ground is far softer and shakier.  Soft ground allows a prosecutor to mold an explanation for conduct that creates a smell of guilt.  Mind you, the conduct may be otherwise equivocal, and subject to any number of plausible explanations, but the government is allowed to argue to a jury that it can forget about all that nasty proof stuff and use the artfully crafted argument as if a defendant actually intended what the prosecutor claims.  The court then makes it sound very official by calling it an “inference” rather than the unfounded speculation it really is.

This is nothing more than a call for jurors to project their own assumptions, under the guiding hand of the prosecution, onto the actions of a defendant.  It’s really quite a bizarre trick, in that a defendant is placed in the most unfamiliar and stressful terrain of his life, where his brain races a million miles an hour and tries to figure out what to do, how to react, while the jury is allowed the opportunity to leisurely review the defendant’s choices and called upon to decide whether that’s the way they would react, given all the time in the world to come up with the best possible choice.  Yet courts allow it.  No, they encourage it.

As Gideon points out, with details, if a defendant reacts appropriately and does what a thoughtful person would do, the defense is prohibited from arguing to the jury that this demonstrates innocent.  Act like an innocent person, as least from the deliberate perspective, and the jury must never know.  Act like a guilty person and it’s all over the courtroom. 

Normal people project motivations on others all the time.  And each of us is absolutely certain we’re normal, meaning that anyone who doesn’t do what we think they should are abnormal.  Defendants often respond to the insanity and unfamiliarity of a police confrontation in strange ways.  Afterward, when you ask why someone did what he did, you get a shrug.  They realize later that they could have handled it better, whether it’s keeping their mouth shut or not struggling as they were being cuffed.  For whatever reason, be it fight or flight, or maybe an assertion of misplaced dignity, their conduct will come back to bite them in the butt.  It does not mean, however, that it’s evidence of guilt, conscious or otherwise. 

It’s evidence that most people don’t know what to do when confronted by police.  Nervousness is one of the most prevalent assertions by police in describing a defendant’s reaction to what they characterize as a simple question.  Do you know anyone who isn’t nervous when confronted by police? Whether criminal defense lawyer, judge or street punk, of course we’re nervous when some guy with a gun and undetermined intelligence commands us to do something.  Only a fool is comfortable.

The prosecutorial reaction to such complaints is that the defendant is always free to take the stand and explain himself, clear up the mystery of his seemingly guilty conduct.  This is a straw man argument, as there are a thousand considerations that go into putting a defendant on the stand having nothing to do with explaining away the facile inferences.  Prosecutors know this, and argue it largely to goad the defense so that they can bring in the defendant’s prior criminal conduct, unpleasant disposition or confused demeanor on the witness stand.  Unlike police, defendant’s don’t take classes in how to testify convincingly at the defendants academy.

That the employment of legal fictions like consciousness of guilt are available to make certain that the playing field is never level is hardly surprising.  It can awfully hard for the government to convict people when something as vague and unprovable as intent is a requisite element of a crime.  But if the courts are going to allow the government to just manufacture a story to prove their case, it reduces the burden of proof to match of who can come up with the best fairy tale.  If that’s all it is, then the chances of a defendant prevailing are awfully Grimm.