Ten Fallacies of Criminal Law

OK... do you think you know a lot about the law?... Heck... you were raised on all those cop and lawyer TV shows...


below is a list of common beliefs about the criminal justice system... true or false?

10. All defendants are guilty;

9. Judges are fair and impartial;

8. A defendant is innocent until proven guilty;     

7. Juries follow the court's instructions;

6. Juries are made up of your peers from a cross section of the community;

5. A defendant is entitled to bail;

4. A person under oath would not lie;

3. You can't be tried twice for the same offense;

2. Defendants are provided with the names of the witnesses and the evidence against them prior to trial;

1. A case is dismissed if "Miranda" Rights are not given when a person is arrested.

If you answered true to any one of the above then you should read below...


10. This is an easy one...of course not all defendants are guilty; even the government would agree that at least 5% of the people in prison are innocent of the crimes for which they were convicted. When you consider the hundreds of thousands of people in our federal, state and local prisons, that's an awful lot of people unjustly behind bars... see www.justicedenied.org.

9. Equally this misnomer needs little comment.. Although judges are sworn to remain impartial they are the same people who lobbied and supported the political rulers that appointed them and who carry with them the same political perspectives. Most criminal judges are former prosecutors who honor the tough on crime (and criminal defendants) approach that helped get their appointer elected. Few judges are willing to even acknowledge that a police officer or government agent would lie in order to support an arrest.

8. Sure, innocent until proven guilty is a fundamental foundation of The Bill of Rights of our constitution but the rules of evidence which require a defendant to produce some evidence (prima fascia) in order to present many defenses, as well as the reality that most jurors believe that the defendant wouldn't be facing trial if he wasn't guilty of something, makes this rubric a complete fiction.

7. Another legal fiction... even great jurists recognize this fallacy: "the naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction." Knulewilch v. United States, 336 U.S. 440, 453 (1949) J. Jackson concurring.


6. A jury of your peers is a complete misnomer. If you are a minority you are lucky in most jurisdictions to find any minority on a jury. Jurors are often chosen from the outskirts of the county or other jurisdiction and away from urban populations that include higher ratios of minorities. One court emphasized that: "the defendant's right to the selection of a jury from a fair and representative cross section of the community does not require that each jury actually impaneled include constituents of every group in the population. Commonwealth v. Soares, 377 Mass. 461, 488, 387 N.E.2d 499 (1979) While asserting that jurors are selected "at random" courts often ignore the fact that the methodology for selecting jurors often has the probable effect of excluding or minimizing minority participation.

5. Although Constitutionally mandated bail, or release of charged defendants has simply become history. The federal government and most states now "detain" defendants pending trial on the basis of "danger and/or flight risk." Under federal law if you are charged with a drug offense that carries a possible term of more than 10 years (which virtually all drug offenses do) then detention is "presumed" and the defendant has a difficult if not impossible task of rebutting any such presumption even if he or she have been lifelong residents of the community. United States Code section 3553.

4. Lying under oath to a material fact is perjury. All those involved in the criminal justice system see it everyday.. ... yet such issues of credibility... are for the jury to decide... One has to wonder just how a juror determines "the truth."

3. Double Jeopardy... We've often heard it said and it appears to be Constitutionally mandated, but truth, in fact, you can be tried twice for the same offense. First, separate sovereign's (i.e. state and federal) can try you separately... but Second and more importantly you may be tried twice if the second prosecution contains any element of the offense that was not charged in the first trial.. (i.e. first assault then assault with a deadly weapon even with the same victim) .

2. It's not a level playing field.... The federal government and some states specifically allow the government to withhold the names of witnesses and the alleged statements made by them against you until trial has begun. 18 United States Code section 3500. It is all too often trial by ambush.

1. "Miranda" rights have the limited value of potentially excluding coerced and un-counseled statements that the prosecution intends to use against you. If no statements are being used against a defendant it makes absolutely no difference if any Miranda rights are given even if the defendant provided a statement to the police. Virtually never will the failure to properly adhere to Miranda result in dismissal, only exclusion of the statement.

Hopefully the above provides a little insight into the reality of Justice In America!!

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