Criminal law might be the fundamental constitutional question. It is the question of under what circumstances, when, where, why, and how the government can affect the liberty of people. Criminal law is a constant fight over each of those lines, where they should be drawn, who's in and who's out. Criminal law also touches on even more fundamental human questions. Mercy. Hope. Redemption. Punishment. Just desserts. Justice. Harm and how to repair it. My name is Matthew Cavedon. I teach at the Emory University Center for the Study of Law and Religion, there at the Law School. I am the Robert Pool Fellow and currently a Senior Lecturer in Law as well. And I am a former public defender in the Northeastern Judicial Circuit of Georgia. Criminal law as a vocation goes to the heart of the most important questions for law and for human society, for human being in this world. It's a wonderful vocation. The fact that it comes with a lot of adrenaline and drama and interesting cases and real stakes in every single case is just the icing on the cake. U. S. criminal justice system is designed, at least in theory, to try to accommodate the needs of both prosecution and defense. The government provides prosecutors. It may come as a surprise, that wasn't always the case. Back in the earliest days of this country, and for a period in England as well, a lot of crimes were actually accused by private citizens. So if somebody stole your cattle, you might actually go and swear out a warrant and try to prosecute them in front of a jury. The government took over more and more of that role as time went on and provided a lot of resources for prosecution. At this point, things have swung so far that the government effectively is the only prosecutor in town in almost every case. In a criminal case, the government has the burden of proving every element of a crime beyond a reasonable doubt. That is the highest burden of proof that the law knows. So, for example, in order to get a search warrant, the police need to convince a judge That there is probable cause, that there is evidence to be found at the location to be searched. That means that there has to be some probability, reasonably, that evidence would be found there. Going one step up from that, if you are injured in a car accident and you're going to sue the person who caused the accident, you need to prove their responsibility by a preponderance of the evidence. That means you have to show that it's likelier than not that they caused the accident. For the state to take away your kids because you're an unfit parent, the state has to prove that you're an unfit parent by clear and convincing evidence. There's no way to translate that neatly into numbers, but it's something more than just a preponderance. More than just more likely than not. In order to convict somebody of a crime, the government has to prove their guilt beyond a reasonable doubt. That means there cannot be room left over for a person to have reasons to doubt that this person did every last part of that crime. That is a very demanding burden of proof. As far as what those elements look like: Criminal law divides them up into two things, the actus reus and the mens rea. In other words, the thing that happened, or the act, and the mindset, or the mentality. For most crimes, the government has to prove both beyond a reasonable doubt. That something happened that is a crime, and that the person had the required mental state. Be it intending to do it, Being undertaking an action despite knowing, almost certainly, that that outcome was going to happen. Be it behaving recklessly, not caring one way or another whether the crime was going to result, but they're just going to go out there and huck glass bottles off a roof and see if it hits somebody. Whatever that mens rea, whatever that mindset is, the government has to prove that as well. There are two kinds of crimes. There are things called malum in se, or things that are evil in themselves. And there are malum prohibitum, or evils that are evil because they're prohibited by the law. Those relate to justice in different ways. When a prosecution happens for some malum in se crime, for something that's wrong in and of itself, for an attack on a person, for violence, for fraud, for theft, for something along those lines, the prosecution should be aiming to seek justice. They should be working to right some wrong that happened. They should be working to make sure that a victim's voice is heard. In cases like that, the defense attorney in seeking justice needs to make sure that, one, the government is going after the right person, because if the wrong person winds up getting convicted and goes away to prison, then there is still somebody out there who has done a wrong, who is free, who has not been punished, and who is still out posing a risk to the society as a whole. Number two. Even in those cases where the government is seeking justice, the defense also should make sure that the government is doing that in a way that complies with justice. That the government is not tearing up random people's houses in the middle of the night to look for scraps of evidence related to some case. To make sure that the government isn't torturing somebody. Holding them for 24 hours without sleep, without access to a bathroom, and then asking them what happened. We have some sense as a society that justice requires respect for human beings and for human dignity. And that that applies no matter what a person has done. The defense attorney has an important job in making sure that the government doesn't overstep those bounds of dignity or of privacy, either of the accused or, again, of other people who might have evidence or might not. Even in cases where the government is seeking justice against some truly evil, heinous thing, the defense exists to protect the defendant as well as the society as a whole from a government that often can be tempted to overreach in the course of trying to ferret out that kind of crime. That's a lovely phrase that Justice Robert Jackson used in an important decision back some decades ago. I think there's also a question, one that defense attorneys raise often, about those malum prohibitums. About those things that are only crimes, not because of some deep moral instinct, but just because of some government rule. Public defenders are the only profession that's actually mentioned in the Constitution, in the Sixth Amendment, when every American is guaranteed the right to counsel if they face criminal charges. What I really loved about being a public defender was that I felt like I could advocate for rights every single day. Yes, to advocate for the client, for them to be seen as a human being, as a person. Everyday I got to get up and argue that whatever the government was doing might have problems, might unduly infringe on somebody's freedom of speech, somebody's right to keep and bear arms, somebody's right to be free of unreasonable searches and seizures, somebody's right to be free of being forced to incriminate or say accusing things about themselves. Those are all parts of the Bill of Rights. Every one of those issues is something that I filed a motion on, that I got to argue about with other attorneys and sometimes in front of a judge, sometimes in front of a jury, and say that the government had overstepped its bounds, that it had violated those rights. So, a win for any given client was not just a win for that client. It was a win for society. And there were times when I believed that a successful motion could have a role in educating law enforcement and the general public, too, about the rights that people have when they interact with their government. The role of the defense attorney in a criminal case can be considered from a few different angles. First and foremost, and this is important not to lose sight of, the defense attorney is the attorney for the defendant. That means that ethically, professionally, we are bound to do what the client needs done. The client, the defendant, is the one who makes the decisions about the case, whether to go to trial, whether to enter a guilty plea. They're the ones whose lives, whose liberty, whose property is on the line. Another role was being a good counselor. When you're a defense attorney, you need to acquire a sense of the context from which the client is coming so that you can help explain to the judge and the prosecutor some of the reasons why the person did what they may have done or didn't do what they're accused of doing. As well as to think creatively about what sort of a resolution of the case, what sort of a plea deal, what sort of a sentence might best help the client and everybody else who's affected. Another important role for a defense attorney is being a fighter. Is getting up every day with the conviction that the government needs to be held accountable. That it's important for those who enforce the law to follow the law. For those who are trying to get others to respect the law to treat it with the utmost care themselves, and so not to overlook for the sake of just closing a case, or getting another file off the desk, or even of getting along with the prosecutors and the police and everybody else, case in and case out. To remember that the most important things were to make sure that all those folks were following the law, to hold them accountable, to make sure that when they overstepped, there was pushback, to make sure that there was accountability and transparency for them, to make sure that judges knew all of the law, so that on appeal, there wasn't some issue that would get the case sent back down because a judge disregarded somebody's rights. America is a republic. We believe that all political authority comes from the people. People understand that at election time, of course, but then it's usually out of their hands. Legislators sitting in a state capitol or up in D. C. sit down and have their arguments. If you watch cable news or if you keep track of that online, you may have a sense of what's going on. But your feeling of power is usually not there, right? It's a few people far away who are making the really big decisions. You're along for the ride and to either reward or punish them at the end. Unless you're a juror. The jury trial has so much importance and so much romance for a lot of people. Because it is when all those people in their fancy suits in the Capitol hand power back over to 12 members of the community. And those ordinary people, people who in their other lives might be truck drivers, might work at a restaurant, might be bankers, might be the head of their HOA, might be on the outs with their HOA, whoever they are, they're the ones who wield the power. Without them, the law is just words on a piece of paper. There won't be consequences unless those people in that courtroom, and sitting in that back room talking with each other about what makes sense to them. And, by the way, that's a decision that nobody scrutinizes. The judge can't ask, how did you arrive at that decision? The judge can't say, did you apply this law in this way to reach this outcome? Common sense and the public reasoning provided by the laws just go into that jury room. And 12 ordinary people talk out what their sense of justice demands from this case, and then they make that decision. It really is where the full circle of power returns. That power comes from the people who elect decision makers, but then it returns to the jury to decide, is this a case that was worth your time? Do you believe that the consequences that this person is facing merit the law being applied to them? Judges will always say juries are not to concern themselves with punishment and juries are not informed of the details of what consequences there might be. But every juror, every juror in their conscience is weighing out, is this the sort of case that we believe deserves a legal consequence, a legal punishment, a legal sanction? The jury holds so much romance because for all of the cynicism, for all the ways in which politics goes wrong, the jury trial is where power returns back to ordinary people to decide for themselves what their law is and how to use it. It's a powerful thing. Ninety to ninety-five percent of criminal cases end in pleas, which means there is no trial, which means that those members of the community are never asked to sit down and look at this case. Almost every case winds up in a courtroom at some point or another on the criminal side of law, and that's because everybody who gets arrested unless they post bail immediately is going to be able to have a bond hearing. Many defendants get a probable cause hearing where a judge listens to what the police officer or whatever other witnesses there are for the government have to say to explain why the person is still being detained. So there are some preliminary hearings that happen in a lot of criminal cases. And, by the way, many defendants cannot afford bail. Most defendants. Probably seventy to eighty percent are indigent, meaning they cannot afford an attorney, and so they probably also will have difficulty making cash bail as a result. So most cases do wind up in court in some way or another. There are also a lot of cases where an attorney certainly can reasonably contest the basis for the, say, traffic stop or the evidence the government used to search somebody's house or to pat them down. So filing a motion to suppress evidence or other things like that, there are reasons why a lot of cases do wind up in court at some point. Criminal cases, unless they're dismissed, also wind up in court for the plea or the sentencing. So cases do tend to end there. And even if there's a plea deal, the judge still does have a role in hearing about the case and in deciding whether or not to accept that deal. Some of the factors the judge looks at are whether this lines up with the public's interest and not just that of the government and the person they've accused. As well as how consistent that would be with other cases within the area, things like that. And the judges there will hear from both the defendant and from any victims that there might be if those people choose to make statements. So there is some way in which pretty much every criminal case, again, unless it gets dismissed immediately and the person doesn't need to get a bond hearing, winds up in court in front of a judge, But the number of those that make it through all the way to a jury trial is very small. In the state systems, it runs five to eight percent. In the federal system, it's maybe two to three percent. There are so few of them for a lot of reasons. One is because we have a lot of different criminal laws. That means that whenever the prosecution is looking at something that somebody has done, they can usually stack a lot of different technical crimes on top of that and charge the person with violating all of them. That means that the person's potential to be punished, their liability, as it were, for prison or for fines, can be astronomical. Even if it is a case of relatively low level drug dealing. If the government chooses to charge it as drug dealing, drug possession, a criminal conspiracy, street crime acts, money laundering, illegal use of wires and communications facilities, somebody could easily be looking at 25, 50, more years in prison for that. Defendants are scared to go to trial as a result. And so working out a plea deal. Where the government gets rid of some of the charges and agrees to what the maximum punishment will be is a large part of how criminal justice happens in America today. That is something that we should all be concerned about, because if the jury is when the American people take back the authority over their law, when there are no jury trials, That means that the public's role in all of this and in deciding the best use of government prosecution resources and in deciding how morally important it is to punish something is lost. The prosecution and the defense have different incentives when it comes to plea bargaining. Prosecutors are elected or appointed. So their incentives are to make sure that either the general public or politicians who are backed by the general public approve generally of what they're doing. That might mean a tough on crime message, where they're asking for very stiff sentences in a lot of cases. In some jurisdictions, it might actually go the other way, where they need to show that they're open to mercy and other things, and so they may need to cut deals that show a greater willingness to compromise. On the defense side, the incentives are actually as varied as the defendants themselves are. Some want a sentence that will include treatment because they feel like they need mental health care or drug treatment and believe that a sentence will help hold them accountable. Probation could actually be a boon for some of them. For others, they want to not have an ankle monitor. They feel like that's a major imposition on their lives. I've had some people be willing to take a few days in jail as opposed to months on probation. Because they would rather spend 72 hours and call it a day than have to check in with somebody twice a week for the next year. So it depends on the person. For some people, money's more important. For some, it's liberty. For some, it's being able to go home at night. For others, it's about being able to be around their families. So you have to figure out by listening to your client, what are the incentives for them? Because again, the attorney's job here is not to be in the driver's seat. The attorney is supposed to sit in the passenger seat, let the driver, the client, determine the destination, decide on where we're going. The attorney can give great advice on how to get there and help navigate. But at the end of the day, it's the defendant's call. So that's part of the art of plea negotiations on the defense side, is learning to get to know your client really well. That can also help to come up with creative solutions, too. Your client might have a pastor who has a treatment program at their church, and so they trust this person, they have a long standing relationship with this person, that might be a great win win for both the defense and the prosecution to come in and say, we're going to make part of that one of the conditions of probation because we all trust that this is going to be a good accountability measure for the defendant. Prosecutors and defense attorneys use different skill sets on the job. There is a lot of overlap. The ability to speak in public, confidence in court, the ability to think critically, those are important for both sets of professionals. But prosecutors start with a police report. and have to be able to sniff through that and determine whether or not they want to lean on it as a basis for bringing an indictment or for proceeding with a prosecution. They also have to focus on how to build their case effectively to a judge and a jury. The prosecution bears the burden of proof on most issues that come up in criminal cases. So that means they have to realize they're starting with nothing, and they have to, through direct examinations of witnesses, through introducing evidence, make sure that they meet all of their elements, and do every single job that the law spells out for that prosecution. Defense attorneys have to be scrappy. They have to be able to look critically, even when eight people are saying one thing. Defense attorneys have to be able to sniff out the weaknesses, the inconsistencies, what's missing, and then figure out, using common sense, what is the best theory for challenging this prosecution. I said the government has to do every job that comes with a criminal prosecution. The defense only has to beat one element. It might be this isn't the right person. It might be there's some legal defense to the case. It might be you missed this element and failed to prove it. It might be any one of those things. Now a defense attorney has to think through all of those in order to weigh out which one is strongest in this case, or which ones to try to bring forward in defense. But then it's about poking holes. It's about being very selective and precise, very surgical, prioritizing what is the challenge I'm going to bring, what are the problems here that really matter. I don't have to do every job. I just have to do one and do it really well. That doesn't mean that you're not thinking about other issues as well or that it's not wise to bring up several different points. But nevertheless, it's a more narrow focus. In addition, in the courtroom, defense attorneys tend to do a lot more of the cross examination. Defense attorneys should be looking for witnesses to call on behalf of their clients. It certainly looks good if there's an even number of witnesses on both sides and that not just the defense is responding to the government's case. But at the end of the day, defense is largely the art of cross examination, of being able to poke holes, highlight flaws, catch weaknesses, articulate those reasonable doubts that can be enough to defeat a government's case. So, some, perhaps me, would say that that's actually shown an imbalance toward prosecution. That prosecution is expected to do a lot more for our society than our founders anticipated. And that that has come at a lot of a cost to civil liberties. To public budgets and to victim’s participation in the criminal justice system. Some of the balances that are provided on the defense side, though, that do have real life to them. The Constitution does protect the right of the accused to have an attorney there with them, which is a good thing. Most people do not know all of the rules that the government is expected to follow within a criminal prosecution. Having an attorney boosts the odds that somebody there is going to be able to hold the government accountable and make sure that people's rights aren't being stepped on in the course of prosecution. In addition, the U.S. Supreme Court has held that that guarantees you the right to an attorney without expense provided by the government if need be. So that's a major step forward for people to have the protection of learned counsel at their side and to have somebody advocating for them in a legally sophisticated manner. There are a number of other protections as well. A lot of the Bill of Rights is actually aimed at issues that come up in criminal investigations and prosecutions. So the Fourth Amendment restricts how the government can get into people's persons, their documents, their property, to look for evidence. The Fifth Amendment guarantees due process and equal protection if the federal government is coming after you. The Sixth Amendment protects, again, your right to an attorney, also to a speedy public trial by a judge and a jury, so that you don't have backroom trials going on the public can't scrutinize, the media can't cover that might feature abuses. The Bill of Rights also protects criminal defendants abilities to make witnesses come to court and testify, even if they don't want to. It protects against defendants being forced to incriminate themselves. Being subjected to pressure from the police so much that they have to give their side of things, even if the police are going to wind up twisting that against them. The Eighth Amendment protects prisoners from suffering inhumane penalties and excessive cruel punishment or fines. So a lot of the Bill of Rights is aimed at trying to provide real balances, real power. Real options for defendants who are facing government power in the context of a criminal prosecution. Thanks to the fine world of cinema, people think that a criminal courtroom involves a lot of shouting, maybe some super cool lasers, and a lot of very hot emotions. It is true that it can be a place with a lot of emotions and certainly a lot of life. Also, a lot of drama and tension, but not in the ways that people think. So, everybody has seen THE cross examination from A Few Good Men: “You want answers. I think I’m entitled to them. You want answers? I want the truth! You want the truth? You can’t handle the truth!” People expect that that's how witness examinations will go. I never had one get that interesting. Witnesses, by the time they're on the stand, they're usually a bit nervous to be in court. They've certainly spent time talking with attorneys about what their testimony is going to be. They're also not huge surprises, right? At the end of The Miracle on 34th Street, when the Post Office shows up with cartons and cartons of letters to Saint Nick and delivers them to Santa Claus, and so he cannot be convicted because the Postal Service recognizes him as Santa. There are rules to prevent what's called trial by ambush. Any evidence that's going to come in has to be shared among the parties beforehand. Any witnesses have to be identified before trial starts. There are lots of more boring court dates where the attorneys go in and will have arguments about what kind of evidence comes in and what doesn't. And if you try to spring a surprise at the last minute, unless there are very particular legal reasons for it, they're not coming in, so you don't get those sort of grand surprise, gasp, everybody turns through the door type movements that, uh, directors certainly love. In addition, technology in the courtroom is quite a bit different. A lot of judges will now tell jurors not to expect CSI. Indeed, you don't see giant laser done 3D holograms of crime scenes. You don't see chemical analyses with giant computer screens. A lot of the times, you'll see test tubes. You might see a printed out piece of paper with a barcode on it. You might get a PowerPoint presentation from the attorneys if they're feeling particularly creative. That's about it. There can be real moments of rhetorical flourish. Opening arguments and closing arguments when attorneys have the ability to really lay out the case as they see it. Can be times when attorneys may ramp up the emotion. There is such a thing as courtroom drama. And so when you get in front of that jury and you're making that eye contact and you're telling them the story as you see it, those are very powerful moments. There's a lot of adrenaline in it. But, oftentimes, the sort of high drama and excitement that comes is from that person to person connection. Not because of flashy exhibits and giant choreography, but just because of that very real human connection and storytelling that happens. With witnesses, there can be strong emotions. When you take away all of the lighting, all of the sound, all of the makeup, all of the exciting stuff behind the camera, you actually still can get very raw human feelings. People do cry in court. People get sick and throw up in court. People are nervous. They're shaking. They're soft spoken. People will point somebody out and say, that person hurt me. People will point others out and say, I didn't do it. It was that person. Or, this person's lying when they say that I did. Those kinds of moments are real. They're not there in every trial, certainly in a lot of cases without the whole person claiming to be a victim and person who's a defendant drama, like a lot of drug cases or DUI cases where it's just between a government police officer and a defendant. Sometimes that drama can be missing, but nevertheless, a place where you do see a lot of emotion often is at the end of a criminal trial. Certainly, I have seen people, um, shaking or near to tears while waiting to hear whether or not the jury's going to convict or acquit them. I know attorneys who've had a courtroom full of family erupt with applause or with anger when that announcement comes down. I've sat there as people are gripping their hands as tightly together as possible, staring at that table, hanging on every word because it's going to determine the next years of their lives. And the relationship with their family, their neighbors, their community, and with their own sense of self, as far as whether or not they go through this life with a conviction on their record, where the government and a jury believed that they did something. Those kinds of dramas are real. So is at sentencing time, when the defendant always has a right to address the court and to say their side of everything, to be able to get it off their chest. Some people are very remorseful, very sad, regret a lot of things that happened. Other people are very defiant and say, I didn't do this, and I understand what the evidence was, but I don't agree with it, and I still can't accept that this is what it is. And anything in between. You also get a chance to hear oftentimes from victims during victim impact statements, where either they will get up at the podium and express what hurt they've endured, or to read off letters. and explain what sort of losses they suffered. Those can be very important, very powerful, very emotion driven moments for everybody in the courtroom, especially if it's been a long trial. When you're in trial, you do go into trial mode. Where you're eating, breathing, sleeping, that trial, where when you go to bed at night, your head is replaying the facts over and over again, or the evidence. Anybody who's ever been in a drama club or a theater production may know what that feels like, where really everything revolves around that trial. But it does get real. And so the end of the case is a time when there's just a lot of emotional exhaustion and anticipation both at the same time. It's a lot. It's quite a feeling to live through. That said, it is really hard to get that with cameras, or CGI, or musical scores. It's actually the real drama that movies and TV just can't emulate.