April 13, 2007

Does being not guilty mean that the accuser made a false accusation?

In this morning's New York Post, John Podhoretz makes a comment about the recent Duke rape case in the United States. A group of lacrosse players from Duke University were accused of rape by a stripper that they had hired for the evening- all sorts of racial and class based antagonisms were bound up in the case and it became a cause celebre in the United States. Yesterday the prosecutor in the case announced that the accuser's story didn't add up and consequently the lacrosse players have been discharged and vindicated.

Podhoretz wants the accuser in the case convicted of the crime of bearing false witness and making false statements. I don't know the circumstances of the case and don't wish to comment on a case which I don't know about. But there is a general principle as well as this particular argument- a general principle which Podhoretz may or may not agree with- I don't know- but which does explain why in all cases the accuser is not accused of being a false witness just because the accusation doesn't reach the court or find favour with the jury. If someone does lie obviously there should be a trial but as I hope to show it is possible that the prosecution witness isn't lying even in a case in which the defendant isn't convicted. I want to outline two reasons why this might be so, based on my limited knowledge of the law- but I'm sure others could find more reasons why such a prosecution is not always likely.

Firstly if an accusation, any accusation is made, and the prosecution decides not to prosecute or the court not to convict, they are not making a statement about the prosecution witness at all. They are making a statement about what can be proved about the defendent- proof requires reasonable doubt to be quieted and consequently is a very high standard to reach. To take the classic problem in a rape trial, one man, one woman alone in a room and the woman claims that she has been raped- if that is the only evidence to convict upon, then it is very difficult to convict- why should you trust one witness over the other. But equally it is very difficult to convict the woman of lying because then you have to know beyond reasonable doubt that she was lying and the problem is reversed. Saying that someone is innocent in a court is tantamount to saying that you cannot eliminate a reasonable doubt that they might be innocent. Saying that someone can't be prosecuted is saying that you don't think you can convince the jury that they are guilty beyond a reasonable doubt. It doesn't mean that the witness is lying though.

The second issue concerns perception. Many crimes involve an action that takes place in a complicated world which doesn't divide easily into the categories given by the law. Lets take the crime of intimidation. If you walked up to me and started screaming at me outside a court room and I was a witness against you, I might feel intimidated and want to bring a charge against you. On the other hand you might be unable to express your opinions any other way, because of the emotion of the moment, and be intending merely to remonstrate with me- not to intimidate me. The law is an unwieldy instrument for resolving what happens between human beings. It is a neccessary instrument- and it protects us all. Ultimately though it is an unwieldy instrument and it is perfectly possible for the accuser to think that something happened to them that was wrong and erroneusly fix a legal term to it that strictly isn't right.

John Podhoretz's article deals with a particular legal case, and not knowing the facts I do not want to comment. But the overall principle that the prosecution if they can't find the accused not guilty, should turn round, look at the accuser and convict them of lying doesn't seem to me to stand. We should remember that the burden of proof is such that it is very difficult rightly to find someone guilty, often finding someone not guilty is merely saying that there is doubt as to their guilt. They go free rightly without a stain on their character. But there is also a doubt about whether their accuser was lying. When we put that together with the fact that the law is a blunt instrument, we can see I hope that the principle of convicting a prosecution witness when their case fails is wrong. Podhoretz might be right on this particular case, I have no idea and don't want to enter that debate (partly because I wonder about anyone having any idea beyond those intimately involved in the case)- but in general I would not like to see the same principle adopted in all criminal cases.


Welshcakes Limoncello said...

Very interesting, Gracchi and I agree with you on the general principle. The law is a blunt instrument but it's the best instrument we have.

Not Saussure said...

In your example of shouting at the witness, while I wouldn't advise it, the law's rather more interested in intention than you might think. The Criminal Justice and Public Order Act 1994 says that, to be guilty of witness intimidation, you've got both to intend to intimidate someone and to intend 'thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.' But you'd still probably get hauled into court and ticked off by the judge for making the stressful experience of giving evidence even worse by 'remonstrating' with the witness, and quite right too.

As to the more general point, I completely agree with you that Podhoretz is talking pernicious nonsense. As you say, a decision not to prosecute, or a jury's decision not to convict, doesn't mean anyone necessarily thinks the complainant is lying. All it means is that the jury isn't sure beyond reasonable doubt that the defendant isn't lying (or, if charges aren't brought, that the prosecution doesn't think there's a good enough chance of so persuading the jury).

If Mr Podhoretz (whose article I haven't read, but it's an argument with which I'm all too familiar) were to stop to think for a minute, he'd realise that as soon as he tries to convict the complainant in this case of attempting to pervert the course of justice by making a false accusation, or any other criminal offence, she enjoys exactly the same presumption of innocence as did the Duke lacrosse players and the prosecution must meet the same burden of proof.

Consequently -- at least if we were doing this here, and I assume it would work the same way in the USA -- Mr Podhoretz would have the uphill task of making a jury sure beyond reasonable doubt that her complaint wasn't true. If he's trying the Lacrosse players, he's got to make the jury sure they did rape her; if the jury isn't sure, they're acquitted. If, however, he's trying the complainant, he's got to convince the jury they didn't rape her. If the jury thinks they probably didn't but they might have done, then she's acquitted.

And then, of course, by Mr Podhoretz's logic, we ought to try, and almost certainly acquit, the chaps she accused in the first place.

Nope. Unless there's very persuasive independent evidence that the accusation was false, then the idea's a non-starter.

Gracchi said...

I agree with both of your comments. thanks.

edmund said...

Fair article and a good genral point however i have to say not saurusse should read Podhoretz/'s article before attacking it. in this case (usnally-0 usually of course it's he said vs she said and not guity but not necessary innocne is theo nly fair conclusio-the inevitable consequance of current sexual mores)

it's very clear they'ren ot just not guity but actually innocent see this excen and comperhi blog of the case http://durhamwonderland.blogspot.com/

or this series in the Raligh news and observer ( a strongly leftwing paper) http://www.newsobserver.com/1537/story/564100.html

and podhet has a point though his artice is far too curde in it. Rape is an attrocious crime-hence annoymi for accusers. hence by the same dint it's an attrocu crime to falsey accuse -and those who do so shouyld be shamed and punished when it is this clear it is indeed false.

Gracchi said...

Edmund thanks for your links there. I have tos ay knowing very little about the case I'm not going to comment- but I think as I've said to you privately that it is always worth stating the general principle with which I know you agree.