The phrase “legal fiction” is a term of art.  There are things in the law we choose to conclude to be true, regardless of whether they are true.  We do so for a reason, but without these legal fictions, the system would rip apart at the edges. Or in the center.

For example, it’s a legal fiction that jurors understand and follow the instructions given them by the judge.  So, if lawyers argue on appeal over whether the instructions were correct, parsing the smallest of nuances, to make their points. All the while, everyone knows that jurors may not have a clue what the instructions mean, but that is never part of the argument. Why? Legal fiction.

Want another example? You got it. How about the assumption that every conviction means that the jury has found the defendant guilty beyond a reasonable doubt, the most incomprehensible and inexplicable phrase in criminal law. You get the idea, right?

At Fault Lines, Ohio prosecutor Andrew King seizes upon a legal fiction, turning to social and legal philosopher Jeremy Bentham to contend that it’s a venereal disease on the law.

Legal fictions are old and have been controversial. Eighteenth century lawyer Jeremey Bentham described legal fiction as “a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness.” Of course, he was really more of a philosopher than a lawyer, so perhaps he was overstating things. But, at a minimum, it seems suspect to formalize a falsehood and embed it into the legal system. This is all the more questionable in criminal matters, where life and liberty are at stake.

Bentham had a tendency to lose his head, as reflected in his rather hyperbolic comparison. But is it a “principle of rottenness” that defendants are offered guilty pleas that fail to reflect the crime for which they were arrested and charged?

King addresses a push in Ohio to reform its criminal law to require that there be a factual basis for a guilty plea.

In the federal system, Criminal Rule 11 requires the judge to ensure that there is a factual basis for the plea. That would seem like a pretty obvious and uncontroversial thing for the judge to do at sentencing. If you think that, then you would be wrong. Ohio recently tried to amend its Criminal Rule 11 to reflect the federal rule on requiring a factual basis for a plea.

After running through the arguments for and against, noting with particularity that the criminal defense bar didn’t favor the change, he concludes:

But part of the reason that the defense bar in particular had trouble explaining their objections is due the principal-agent problem that Andy discussed in his post. In many cases, it’s against the appointed defense attorney’s interest to go to trial, unless the court is throwing money at appointed counsel. And when it’s in the retained attorney’s interest to go to trial and thus charge more fees, it may not be in the client’s interest. Regarding public defenders, they have a caseload that really never stops growing. So, they always have something of an incentive to get rid of cases through quick and early pleas. Time, like money, is valuable.

In other words, criminal defense lawyers want to retain the ability to use fictitious pleas for self-serving reasons, whether easy money or to shed excess cases.  Self-serving lies, wrapped up in a pretty bow about how it’s for the good of the client, when it’s really just for their own benefit. Lying liars, you defense lawyers.  And not only at the expense of their clients, but at the expense of victims and society as well.

Pleas devoid of any factual basis are a win/win for counsel, but how about the defendant? The defendant agrees to plea guilty to what is essentially a made-up offense. If the attorneys have to make up a new charge, then doing so suggests that the defendant is not guilty beyond a reasonable doubt of the true crime. It becomes “do the made-up crime and do real time.” This legal fiction operates with the consent of the defendant but quite possibly to the defendant’s detriment.

Victims and communities too are short changed by this legal fiction. Often these factually false pleas are made to avoid the sexual offender reporting requirements. So the prosecutor “gets the bad guy off the streets,” but then when the offender gets out, the true crime is obscured to family, neighbors, and potential employers. And the legislative policy requiring registration is thwarted by the plea deal.

Is Andrew right that defense lawyers can put their self-interest ahead of their clients by copping out to some compromise crime that never happened?  Of course. It’s true that they can, and many do. It’s a blight on the criminal defense bar when defendants who aren’t guilty and have triable cases are convinced by lazy, incompetent or greedy lawyers to take a plea because it’s the better choice for the lawyer and he’s abused his relationship of trust with his client.

But what Andrew omits from his discussion isn’t the syphilis of the defense bar, but the gonorrhea of the prosecution and the chlamydia of the system. There are more than enough venereal diseases to go around.

A defendant with priors will get ripped to shred on the stand, even though he’s innocent of the crime with which he’s charged. A cop will fill in the blanks with lies because he’s certain that he got the bad dude, what Josh Kendricks calls “noble cause corruption.” The prosecutor knows that his case could fall apart on trial because his witness is missing, or will collapse on the stand under cross, so he offers a sweet deal to get something out of the prosecution.  Are the prosecution’s lies better than the defense’s?

Then there’s the judge’s lies, the ones where he has no clue who is telling the truth, like the puffery that a defendant who has never touched more than a dime bag of drugs in his life tells a rat that he can deliver 100 kilos.  And, of course, that the rat has become a saint, who would never lie, because he cares only for the welfare of society. And the 5k1.1 letter he gets for snitching.

The legal system is replete with fictions, without which none of the gears would grind at all. The defense has its lies. The prosecution, the cops, the rats, and even the judge who, for lack of any magic, decides that he’s going with the odds and will find the lying cop credible because, well, reasons.

Are there pleas to “fake” crimes? Of course, though everyone understands them to be a compromise, a legal fiction designed to move cases along. Then again, there are also “fake” convictions to real crimes, as evidenced by exonerations. Until we can figure out a way to eliminate the latter, it’s disingenuous to complain about the former. Everyone in the system has their own venereal disease, but no one has as yet come up with a penicillin to cure it. The only thing it proves is that everyone has gotten screwed.