Natty Shafer Law

Utah lawyer for criminal and immigration cases

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The Myth That Long Prison Sentences Deter Crime

Getting “tough on crime” sounds good in the abstract. Nearly every politician, regardless of political party, says it is necessary. It certainly sounds good to the average voter. But what does that actually entail? Prisons and jails in the United States are miserable places to visit, let alone actually spend time incarcerated in them. No one wants to be there. They are over-crowded, lack privacy, devoid of natural light, and the prisoners must do what they are told, all day, every day. Despite media depiction of jails as relaxing places, politicians would be hard pressed to make incarceration any more miserable.

The usual method politicians use to get tough on crime is to lengthen prison sentences. The problem is, the United States has been getting tough on crime for 40 years now with only longer sentences to show for it. Our sentences are longer than other any other industrialized nation. (Our crime rates have been dropping since the early nineties, but that has been happening throughout the industrialized world, including countries that have very short sentences.)

More importantly, the average law-abiding citizen has no idea how long sentences are now. People I talk to are often very surprised to hear how long someone can be incarcerated for various crimes. If people do not know how long sentences actually are, how do they know they want them lengthened?

A federal judge by the name of James Gwin ran an unusual experiment. He had jurors write down how long they believed someone they had just convicted should be incarcerated. He did this for 22 trials. He gave the jurors a description of the defendant’s past criminal convictions and then had each juror write down, anonymously, what they felt the appropriate sentence was. On average, jurors recommended sentences that were 36% as long as the minimum sentences under the Federal Sentencing Guidelines. In other words, completely average people thought the person they had just convicted deserved to spend about 1/3 the amount of time incarcerated as the defendant would get under the most lenient sentence using the federal sentencing guidelines.

The argument in favor of longer sentences stems from the belief that criminals are making a rational calculation. In order for longer sentences to deter crime, a criminal must make a calculation like this: “I would rob that house if the jail sentence is 12 months, but if the jail sentence is 18 months, then forget about it.” It just does not seem that people make these calculations before committing crimes. Despite decades of experience, there is scant evidence that anyone is actually deterred by longer sentences.

If society really wants to deter crime, it needs to convince every potential criminal that they are almost certainly going to be caught. At that point, the punishment is less important because everyone knows they will be deprived of whatever benefit they would have gained through crime.

Take this thought experiment: imagine that the punishment for speeding was $5. “Great! Now I am always going to speed,” you might think to yourself. However, imagine there are enough police on the road that you are 90% sure you will be pulled over if you speed, even a little, even if it is for a minute only. Suddenly the calculation changes. Not only would every speeder have a 90% chance of losing $5, but they would also have to deal with the hassle of being pulled over and then mailing payment to the courthouse. Deterrence is sometimes less about the punishment and more about the certainty of being caught.

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How a Lawyer Would Have Helped Jane Doe

The scales of justice favor those with an attorney.

The scales of justice favor those with an attorney.

While reading about Jane Doe’s foray into the criminal justice system (see Part I and Part II), I hope there were points where it was obvious how a lawyer would have helped. I am going to highlight some of the less obvious ways that a lawyer could have helped Jane. However, before I do that I would like to address a couple common misconceptions that might prevent a reader from appreciating the hypothetical.

The first misconception is that the prosecutor would have dropped the charges once she saw that Jane was not guilty. Maybe a few prosecutors would, but not nearly enough. I have personally witnessed some appalling cases move forward when a defendant acts as their own lawyer (i.e. pro se defendants). For example, I once saw a pro se defendant plead guilty to a DUI when her BAC was .04 on the breathalyzer (well under the legal limit of .08).

The second misconception is that pro se defendants do not perform as badly as I indicated. I have personally witnessed much worse: they make irrelevant arguments and forget to make their best arguments; they throw around legal terms that they do not understand; they get flustered when a judge inevitably rules against them; and they antagonize the judge unnecessarily.

How would a lawyer have helped Jane Doe? First, a lawyer would have saved her time. Many Utah courts will forgo the arraignment if their attorney has notified the court that they are pleading “not guilty.” If if that is not possible, the attorney can let the court clerk know at the arraignment that they will be entering a “not guilty” plea, allowing to defendant to see the judge faster.

Second, an attorney would explain to Jane the purpose of each court date and the likely outcome. She would not arrive at court expecting the prosecutor to just drop the charges. Even when defendants have great arguments for dismissing charges, prosecutors want to investigate and make sure they are not missing crucial information. Once a prosecutor has had a chance to verify the claims, then they might dismiss the case. Even without a dismissal, prosecutors are more likely to offer a reasonable plea agreement when they know you have an attorney.

Finally, everything about the trial would have gone smoother. Although it is conventional wisdom to ask for a jury trial, this hypothetical may have called for a bench trial. There are specific facts a prosecutor must prove beyond a reasonable doubt for someone to be convicted of theft of services. Judges are better able to understand arguments such as Jane lacked the “requisite intent” to steal.

Defense attorneys have experience public speaking. It is common for attorneys to practice their opening statements. Assuming it is a jury trial, more than half of all jurors do not change the opinions they form during opening arguments. That is the time to tell the jury, as plainly as possible, why a defendant is not guilty. Defense attorneys generally do not lose their composure when prosecutors say something negative about their clients.

Cross-examination, done by a talented defense attorney, could have won Jane her case. The police officer could have been used to Jane’s advantage. The officer did not witness Jane at the restaurant, and he was only able to find Jane because she was the person to pay with a credit card. An attorney would have pointed out to the jury that the fact that the server did not see Jane pay also means the server was not watching closely. A lawyer would also point out that there were two other people eating with Jane.

Jane’s friends might have still invoked their rights and chosen not to incriminate themselves, but the lawyer would at least have been prepared for that possibility. The lawyer would have talked to them before the trial and known how likely they would be to testify.

Most importantly, a lawyer would have prepped Jane to testify. The jury would have heard all the important pieces of her side of the story. An occasional objection from the prosecutor would not have flustered Jane’s attorney. Also, the lawyer would know how to enter Jane’s credit card receipt into evidence. There are certain procedures one must follow to enter a document into evidence, and I have never seen a pro se defendant do it correctly.

The bottom line is that a criminal conviction has long-term consequences. It is best to leave criminal defense to someone with experience handling trials.

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Representing Yourself in Criminal Court: Part II, the Trial

When we left off in Part I, Jane Doe was getting ready for a trial after being accused of Theft of Services. She decided to represent herself because she does not think she needs a lawyer; only guilty people hire lawyers and she is sure the jury will see she is innocent.

Jane does not sleep very well the night before the trial. She shows up to court looking tired, she does not think as sharply as normal, and she is feeling the stress.

Jane’s two friends arrive at court that morning, which is fortunate because she is not sure if she properly served them with their subpoenas. The friends, John Jones and Sally Roe, ask Jane where they are supposed to go. Jane is not sure and spends ten minutes talking to the clerk, instead of calming her nerves. Eventually, they are asked to wait outside the courtroom until they are called.

Jane Doe has never been very good at public speaking, but she plans to keep it simple. The judge tells her that she can help select the jury and he explains how. The prosecutor does most of the actual selection. They all look the same to Jane. A few minutes later, the judge swears in the jury.

The Trial
The prosecutor gives a fairly short opening statement, but the prosecutor does make Jane seem dishonest. The judge tells Jane she may give an opening statement. Jane starts to tell her side of the story. Halfway through the opening, Jane tries to show the jury a copy of her credit card receipt showing she paid for her meal. The judge stops her and tells her she cannot introduce evidence at this time. Jane gets flustered and cuts her opening statement short.

The prosecutor starts her case by calling the restaurant server to testify. The server seems friendly, but he does make it sound like Jane personally stole money from him.

Jane then has her chance to cross-examine the server. Jane asks him if he saw her pay. He says he did not. She tries to show him her credit card receipt. The prosecutor objects and after some confusing discussion between the prosecutor and the judge, the judge allows Jane Doe to show the receipt to the server. The server denies having ever seen the receipt before, and Jane does not ask any follow up questions.

After the cross-examination, the jurors are confused about what Jane was trying to prove. All they know is that the server thinks he was not paid, and Jane has something that might be a receipt, but they do not know what is on the receipt.

The prosecutor calls the police officer. Jane does not see anything damaging about the police officer’s testimony. The judge interrupts the officer and asks Jane if she would like to make any objections. Jane cannot think of any. The police officer explains that in his experience it is very common for thieves to come up with a plausible explanation for their behavior. The prosecutor rests her case.

The judge tells Jane that she can call any witnesses if she so chooses. Jane calls friend #1, John Jones, to the stand. He begins to testify that he was at the restaurant with Jane for lunch. At this point, the prosecutor interrupts and asks the judge if the witness has been advised of his right to remain silent. The judge asks the witness a few questions and asks if he understands that he too could be charged with Theft of Services. At this point, John becomes less helpful answering Jane’s questions. By the end of his testimony, he has made it clear that he paid cash for his meal, but he did not know what Jane Doe or Sally Roe had planned.

The prosecutor is mostly happy with John’s testimony, and during her cross-examination she just uses John’s testimony to make absolutely clear that Jane was present at the restaurant and she ate food.

Sally then enters the courtroom. The prosecutor asks the judge to once again make sure that the witness understands that she could be prosecuted for any incriminating statements. Sally is similarly scared by this news. She decides not to answer any questions at all. The judge excuses Sally.

Jane then takes the stand on her own behalf. Jane does make some good points, but unfortunately she buries them in the middle of a rambling story filled with “ums” and “uhs.” By the time she mentions to the jury that she had paid for her portion of the meal, half of them are not listening. She repeatedly tells the jury that she is an honest person and that she would never steal; each time Jane starts to say this, the prosecutor objects. The judge asks her politely to keep to the facts and to avoid giving her opinion. This flusters Jane and she is not sure what she is allowed to say. She forgets to testify that she has a receipt for her share of the meal.

The prosecutor keeps her cross-examination short. She makes it clear to the jury that Jane was at the restaurant. She also gets Jane to admit that the full cost of her meal was not paid when she left.

The prosecutor tells the jury that it is very important that everyone pay for the services they use. It is part of living in a civilized society and Jane needs to be punished. The prosecutor says that she could have also prosecuted Sally and maybe even John, but Jane is here right now. It is the jury’s job to find Jane “guilty” of the charge.

Jane does not give a good closing. She mentions again that she is not a bad person and that she is so sorry that the restaurant was not paid, but it was not her fault.

The jury is completely confused as to why Jane thinks she should be found “not guilty.” The jury deliberates for about 20 minutes before returning with a guilty verdict. The judge asks Jane if she is ready to be sentenced. She says she is. Fortunately, the judge does not impose any jail time, but he does impose a fine and makes Jane go to a class about theft. Jane now has a criminal record which can be researched by anybody.

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Representing Yourself Against a Criminal Charge: Part I, Pretrial

Rimmer: If only I’d hired a smarter lawyer, instead of the brain-dead, pompous, stupid-haired git I ended up with.
Lister: You defended yourself!
Rimmer: Yes, and I don’t need reminding of that, thank you very much.

Red Dwarf

In the United States, you are allowed to represent yourself in a criminal trial, but it is almost always a bad idea. To help illustrate what it might look like when a person tries this in Utah’s courts, I am going to take readers through a hypothetical Utah case. Assume Jane Doe has been accused of Theft of Services under Utah Code 76-6-409. Jane is an intelligent businesswomen, but she has never dealt with the criminal justice system before.

Jane’s Side of the Story
Jane had lunch with two of her friends at a local Utah cafe. Normally, each one of Jane’s friends pays for their own food. Jane needed to return to work earlier than her friends. She went to the cashier and paid for her portion with her credit card and returned the remainder of the bill to her friends. A couple days later, a police officer tracked her down via her credit card address. The officer informed Jane Doe that she is being charged with Theft of Services for not paying the whole bill. After talking with her friends, she determined that friend #1 paid in cash, and friend #2 thought friend #1 paid for both of them. Somehow $17 from the lunch did not get paid, and the restaurant called the police. The police officer contacted the only person in the group the restaurant could identify.

Jane’s First Day in Court
The police officer told Jane Doe that she will have to go to court. Jane shows up for what turns out to be her arraignment. She asked for the morning off of work, but she hopes she can put this scary episode behind her once she explains to the judge what happened. After waiting through a couple hours of miscellaneous court proceedings, the judge finally calls Jane’s case. The judge wants Jane to enter a plea and to set the next court date. Jane has been waiting all morning and has no intention of simply saying “not guilty.” She thinks that if she explains what happened, the judge will simply dismiss the case.

Unfortunately, the judge cannot dismiss the case at this point. Even if the judge believes Jane, it is still the prosecutor’s decision about whether or not to dismiss the charges. The judge tries to find a polite way to tell Jane, “I don’t care.” (Judges want to avoid giving that impression. Everyone accused is entitled to their day in court.) Jane’s judge knows that regardless of what Jane says, he cannot yet dismiss the charges. After interrupting Jane’s story, the judge manages to help Jane to understand that she will have to come to court again.

Pretrial Conference
A month later, Jane once again asks for time off work and comes to court. Surely now the justice system will understand her point-of-view! Maybe. The prosecutor talks to Jane, and the prosecutor does have the power to drop charges. However, most prosecutors have heavy case loads and have to make snap judgments. At best, the prosecutor read the police files that morning and knows what the police officer wrote. At worst, the prosecutor merely looked at the charges. Regardless, most prosecutors generally do not dismiss the charges without something in return.

For our hypothetical, the prosecutor offers to reduce the charge from a Class B misdemeanor to a Class C misdemeanor, and promises to recommend to the judge that Jane serve no jail time. At this point, Jane is completely mystified as to why she should plead to anything. Although it was her friend’s meal, Jane would gladly pay the restaurant $17 to make the charges go away, but the prosecutor refuses to drop the charges. Jane considers accepting the plea to avoid further hassle, but she decides she does not want to have a theft charge on her record. She is confused and angry that no one is listening to her.

Jane waits another hour to speak to the judge. She implores the judge to listen to her story, but the judge still does not have the power to dismiss the charges. The judge tells Jane that she can set her case for a trial and that will be her opportunity to tell her side of the story. Jane says that is what she wants. The judge asks her if she wants a jury trial or a bench trial. Jane does not know which she would prefer. She tentatively asks for a jury trial.

The judge sets a trial date . The judge tells Jane there will be a final pretrial conference one week before the trial. Jane does not know what that means. The judge tells her that it is customary in Utah for both parties to meet about a week before the trial to meet. It is an opportunity to discuss jury instructions and make sure everyone is ready.

The judge gives Jane Doe an outline of how the trial will proceed. He asks Jane if she will want anyone to testify at her trial. Jane says she thinks she wants her two friends to testify. The judge tells Jane that she has the power to subpoena witnesses if she wants. He advises her it is not too late to hire an attorney and then excuses Jane. Jane spends the next 45 minutes talking to the court clerk trying to figure out how to subpoena her friends.

Final Pretrial Conference
Jane once again must take time off work for her court date. She arrives for the final pretrial conference, and the prosecutor tells Jane that she talked to the restaurant manager. The restaurant is very “active” in pursuing criminal charges, according to the prosecutor. The restaurant is adamant about discouraging someone else from trying to “dine-and-dash.” Jane says she paid for her meal and would gladly reimburse the restaurant for her friend’s meal if they will drop the charges. The prosecutor shrugs her shoulders and says that her hands are tied.

The prosecutor asks Jane if she looked over the proposed jury instructions. Jane says she thinks they look fine. They then speak to the judge, who asks if everyone is ready to go forward with the trial. The prosecutor says she is ready. Jane says she is not sure; she has never seen a real trial before. The judge again explains the procedure of how the trial will go, but gives very little in the way of trial advice.

Jane has missed parts of three days from work and is frazzled. She is no closer to winning her case.

Up next in Part II: the Trial.

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Junk Science Continues to Plague Criminal Justice System

The criminal justice system is still suffering from decades of poor forensic evidence. One of those fields, microscopic hair comparison review, has been in the news lately. The FBI has been reviewing cases where their experts gave testimony about supposed hair matches. They found that in over 95 percent of the cases reviewed the FBI’s own forensic examiners overstated the forensic matches.

It is unfortunate that there has not been more of an outcry over this story. It is bad enough that innocent people have been sent to jail. There is no other way to describe this but as a tragedy. We know people have spent years, even decades, in jail for crimes they have not committed. It also means that law enforcement stopped looking for the person who actually committed these crimes. Perpetrators likely remain free, committing more crimes, because the law enforcement agency stopped investigating.

The problem with hair analysis is it is not scientific. It is subjective. When comparing two strands of hair, the identifiable characteristics of each strand are limited. Usually, what can really be determined by looking at a hair under a microscope is its color. That might, for example, narrow the field of suspects if the police think the perpetrator has red hair, but that strand of hair cannot definitely be said to come from any one person (unless there is DNA attached).

For decades FBI analysts were testifying in court that they could identify matches, sometimes going so far as to say they could positively identify them. Local forensic agencies followed the FBI’s lead. Countless people have been wrongly convicted, but the wheels of justice have been slow to reverse the wrongfully convicted.

By Nevit Dilmen - Licensed under CC-BY-SA-3.0 via Wikimedia Commons.

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The Hidden Costs of Pleading Guilty

“I am just going to plead guilty. I do not need a lawyer.” People frequently tell me that it would be pointless to hire a lawyer because they know they are guilty. Many people like the idea of accepting responsibility and moving on with their lives. Unfortunately, it is rarely that simple when the criminal justice system is involved. Most people know about traditional punishments like fines and jail time, but convictions have hidden costs.

Convictions have both legal and extra-legal penalties that are not apparent until several months or years have passed. With the permanency of computer records, these penalties often haunt people for the rest of their lives. And make no mistake, a guilty plea is a conviction and criminal records make no distinction as to whether someone has accepted responsibility. Here are some common hidden costs of convictions:

    • Driver’s Licenses – In Utah, licenses can be suspended for certain drug or alcohol offenses even if the criminal offense had nothing to do with driving.
    • Owning a Firearm – Any felony conviction and many misdemeanor convictions make it illegal to own firearms or other weapons. In Utah, a DUI conviction leads to a concealed weapons permit being denied or revoked for at least six years.
    • Student Loans – Many drug convictions make it harder or impossible to qualify for federally subsidized student loans.
    • Immigration – Convictions for felonies and misdemeanors can carry long-lasting effects for anyone who is not a U.S. citizen. Convictions may lead to deportation or make it harder to later become a U.S. citizen or change immigration status.
    • Applying for a Job – Many employers routinely conduct background checks.

This is not even an exhaustive list of the hidden costs of convictions. For many people, these hidden penalties are worse than the traditional penalties. Pleading guilty may ultimately be the right choice for a particular case, but a lawyer can structure a plea to minimize or eliminate these hidden costs. Not all crimes will cause a driver’s license to be suspended, for example, and it may be possible to plead to a related charge that does not have the potential for license suspension.

In addition to the hidden costs, a lawyer can also help with those costs the traditional costs of a conviction. These days prosecutors have a kitchen sink approach to charging people. Even assuming that someone is one of those rare people that do not care about maintaining a driver’s license, having a job, or being allowed to live in this country, walking into a court and pleading guilty is a foolish proposition. Often, one or more charges will be dropped in exchange for a plea, and having fewer charges can reduce the fine. You may also be neglecting the fact that you are not guilty of some of the charges. No one should let a vague notion that they have done something wrong substitute for a proper analysis of all the charges.

My lawyer fee could be partially or wholly paid just by getting charges dropped and fines reduced. It is always best to have a lawyer look over the charges and analyze the case as a whole. Many lawyers, including me, offer free consultations.

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Sorcery and the Law

You think it’s just memorizing a bunch of spells and throwing them at him, like you’re in class or something? The whole time you’re sure you know there’s nothing between you and dying except your own—your brain brain or guts or whatever…

—Harry Potter, chapter 15, Harry Potter and the Order of the Phoenix

Most people have a decidedly magical view of lawyering. Speak the right Latin phrase and—presto!—the judge rules in your favor. A police officer fails to give you a Miranda warning and—abracadabra!—the charges are dismissed.

The law is magic.

Lawyers are wizards.

People ask me for ways to handle their own case. For myriad reasons, this is a bad idea, but the biggest reason is that most people have no idea what to expect in court. They do not even know the reason for their next court date, let alone what they are supposed to do once they get there. They say, “if you just told me what to do, I’ll save myself a lot of money and you can save yourself the the hassle.” If only it were so simple. This is the simplistic view that Harry Potter says people have about magical duels. There is more to lawyering than just muttering a Latin incantation to a judge, and nothing is simple once you get to court.

In truth, it would be easy to give a naive client a plan A for when they get to court, but they will also need a plan B, C, and D. Whenever the client is throwing “incantations” about the law, the other side is throwing them right back at you. Anyone unprepared will lose a case that they could have won. Nearly any case can be lost through bad lawyering. There are many rules of the courtroom that are not forgiving to the uniformed. For example, if someone fails to object in a timely manner, the law considers the objection waived. Miss a crucial objection and it will sink the case and its appeal, too. Knowing how and when to make objections is something that takes years of study and practice.

People often think that because they are innocent they do not need a lawyer. A proper resolution to a criminal case can take months or even years. This is no less true for those who have a good case for defense and are factually not guilty of the crime. There is no way to quickly teach someone how to fight a case.

People think they can show up to the arraignment, and (Perry Mason style) the judge will see how wronged they have been, and the charges will be magically dismissed. Even if you have a good issue for suppression, you have to know when and how to raise the issue. In my experience, laypeople are bad at even identifying issues for suppression and do not know what will happen even if they win. Sometimes, a prosecutor can proceed with charges without the piece of suppressed evidence.

For so many reasons, it is best to hire a lawyer. Let them do their magic and fight the battle for you.

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The Slow Wheels of Justice

It can take a significant period of time for a criminal case to resolve. The initial appearance in court can be weeks after an arrest, and then there may be several more dates after that (preliminary hearings, pretrial conferences, and suppression hearings are among the more common pretrial court appearances in Utah). Each court date can be weeks or months apart, meaning months or years can pass between an initial arrest and the final disposition of the case.

Crime shows on TV often say, “delay is always good from the defense.” I am not so sure. That may be the case in certain types of cases that require a lot of witnesses the government needs to contact and ensure they remain willing to testify. Most cases have just a few witnesses, which usually include government employees, such as the arresting officer, and the prosecutor can easily contact all of them. Many cases have just one civilian witness and some cases, like a DUI case, might involve no civilians. Government employees are often paid their normal salary to testify, especially if it is part of their work description as lab technicians or law enforcement officers.

Many prosecutors are in no particular hurry to resolve cases. The more populated counties in Utah have multiple prosecutors in each department and a different prosecutor might handle each court hearing for an individual case. Prosecutors are evaluated on the outcomes of cases and not necessarily on how long it takes for each case to resolve. Consequently, a prosecutor has less incentive to hurry and close a case than to make sure each case sees a favorable outcome for the government; a prosecutor could get in trouble for giving a favorable settlement to the defendant, but prolonging a low profile case for many months is rarely going to be an issue for the bosses.

Defendants, on the other hand, have every reason to want a case to come to a close. The defendant is expected to appear at each court date, possibly requiring time off work. Each appearance involves some degree of stress because it is impossible to know what will happen in court. I try to reassure my clients about the most likely outcomes, but it is hard for people to stay positive in an unfamiliar situation. I have had some clients lose their motivation to fight any longer, particularly in misdemeanor cases. Often their lives have more or less remained unchanged after the arrest, but they are tired of the hassle of repeated appearances in court. (Unfortunately, many consequences of a misdemeanor conviction do not manifest until many years later.) For defendants who are in police custody, taking a plea deal will mean there is a definitive end to incarceration instead of endless court dates eroding morale.

A client has the constitutional right to decide whether or not to accept any given plea deal. A lawyer must abide by that decision, but I will encourage a client to keep fighting if I think it is in the client’s best interest. The bottom line: patience will help get the best outcome.

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“But I’m Innocent; I Don’t Need a Lawyer”

One of the more frustrating sentiments I encounter is the notion that innocent people do not need a lawyer. I see two major problems with the sentiment. First, the police and the prosecutor do not have special abilities to recognize who is innocent and who is guilty. Second, it presupposes that only guilty people ever get put on trial. Let us take a moment to examine each of these misconceptions.

The first misconception puts a bit too much faith in police and prosecutors to spot and recognize the truth. They are only human. They are also dependent on the process working correctly, despite being overworked and underpaid.

The police, most of the time, do not personally witness crimes and they have to rely on outside witnesses. Sometimes those witnesses are simply wrong, but some also lie to the police. (Many accused people are shocked that the police are unable to see a witness is lying.) Even when the police do personally witness crimes, they are susceptible to errors of perception and judgment. The police then write a report about what they saw and what they were told. Ideally, police reports are descriptive, accurate, and complete. Often the reports are full of jargon, containing the buzzwords they think the prosecutor wants, while leaving many important facts out. A prosecutor then relies on these reports in deciding who and what to charge. In Utah, prosecutors usually do not speak to witnesses, including the police, until it is time for trial or a suppression hearing.

The second misconception is a symptom of the first: it presupposes that prosecutors always know the truth and therefore if someone is on trial, that person is guilty. Most Americans are familiar with the concept of “innocent until proven guilty,” but jury surveys suggest people often ignore this central part of our justice system. Despite being told that they must weigh all the evidence, a majority of jurors decide to issue a guilty verdict simply because someone is on trial.

Jurors think that prosecutors only go forward with cases where the prosecutor is absolutely sure the defendant is guilty. Unfortunately, prosecutors do not have that much time to dedicate to individual cases. They spend a little time looking over the case file, and maybe a few minutes speaking to the witnesses, but not much more. And due to the high turnover in many offices, a different prosecutor than the one that initially decided to file charges or who appeared at arraignment may conduct the trial. In such a system, prosecutors have little time to ponder whether a defendant is actually guilty or innocent.

In many ways, people who believe they are innocent are prone to making their cases worse. They do not see the problem with talking to the police and believe they can convince the police of their innocence. If the police have arrested you, they already think you are guilty. Also, there are so many crimes now that it is easy to admit to doing something illegal. You are not going to talk them into believing you are innocent and you may even add new charges. The innocent, most of all, need a lawyer.

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More on the Dubious Science of Bite Mark Analysis

A few weeks ago, I discussed some problems with bite mark analysis. It seems at least one forensic dentist agrees with me. Michael West, a Mississippi dentist, testified 81 times that bite marks on people’s bodies matched the teeth of suspects, but he no longer believes in his own specialty.

In a deposition obtained by The Clarion-Ledger, Mr. West said, “I no longer believe in bite-mark analysis. I don’t think it should be used in court. I think you should use DNA.” Previously in court he had emphasized how reliable bite mark evidence was and said that each mark was unique. Unfortunately, he was both wrong and successful at helping prosecutors get convictions. Cases he testified on are now being reviewed:

Two of those convicted in a 2001 aggravated assault case in which West testified, Leigh Stubbs and Tami Vance, are now receiving a new trial. They are both out on bond and will be arraigned today in Brookhaven.

Here’s to hoping that every state will soon prohibit this type of testimony.