One of the major problems the prosecution has is its initial decision to withhold what had the potential to be completely exculpatory evidence. True, eventually the police department did release the evidence, but in withholding the evidence initially it indicated an intent that can only be called suspicious. These suspicions are only confirmed by the 15 minute gap.
Yet another serious issue for the prosecution is the anomaly between the amount of money registered on the log and the contradictory testimony. So, either the police department has extraordinary quality control issues, or malicious intent . . . as it so happens, in neither situation is the case for the prosecution improved.
Because of these issues, the credibility issues for the defense do not loom clearly as large. Yes, the name on the title does not reflect the name of the person to whom the car was sold, but that person could be Jim’s wife. In any event, the report of title confirms that the car was sold, adding credibility to this claim by the defense.
There are potential problems with the defense allegation regarding the e-mail, in light of the affidavit, but then again, just how reliable is this affidavit given the issues with the gap in the tape, and the fact that it does not really address the content of the letter?
As you can probably guess, the whole case is going to turn on the credibility of the evidence, and at this stage of the game, there seem to be some significant flaws with that presented by the prosecution.
How sufficient is the evidence?
How this question is answered depends to a great extent on the analysis of credibility. The evidence which is deemed not credible (log entry, detective testimony, lie detector, etc.) can be excluded from consideration, and in the process of exclusion, the case could possibly be decided. At this stage of the game, the prosecution has some very serious issues, and the more exclusion, the less sufficiency.
How consistent is the evidence?
Again, how this question is answered will largely rest on the credibility analysis. However, if we assume that all evidence is equally credible, we see that there are serious problems with consistency (log variation, prosecution vs. defense version of events, etc.) that would radically reduce the confidence level. The only remedy for this from the perspective of the prosecution is to attack the credibility of the defense, but, considering that it has credibility problems of its own, its attack would itself not be very credible.
This is just a very brief, perfunctory analysis, which could go on for many more pages, and could be subject to hours-long debate. In short, this case is a mess.
When you have a mess, you have a problem. Your whole tight-knit case can unravel when even one thread comes loose, particularly if you have inconsistent evidence. Follow the thread:
Not consistent, not credible;
Not credible, not comprehensive;
Not comprehensive, not sufficient;
Not sufficient, no case!
That is one thread, and there are several others possible. In circumstances like the preceding scenario, what do we do? Luckily, complex situations like these can sometimes be resolved by going back to the basics, relying on due process considerations to come to our rescue.
The law of the United States helps us out, especially in regard to the all-important videotape issue. As the Supreme Court pointed out in Berger v. United States (295 U.S. 78, 88 (1935); emphasis supplied),
[A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Indeed, as Berger pointed out, one of the primary duties of the law is the disclosure of exculpatory evidence. The standard has been articulated by the American Bar Association in 1983, in its Model Rules Of Professional Conduct. The primary rule on point is Rule 3.8 (d), which reads as follows: 1
The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor . . .
This standard is exemplified in several cases by the Supreme Court. One of these is Brady v. Maryland, in which the Supreme Court discussed the early case of Mooney v. Holohan, and stated as follows (373 U.S. 83, 87 (1963) (emphasis supplied)):
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor, but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . .
The court also held in United States v. Bagley that every defendant has a right to know of “evidence favorable to the [defendant] that is material to either guilt or punishment.” (473 U.S. 667, 675 (1985) (emphasis supplied)). There are several other cases along the same lines. 2
Now, it is obvious that these cases are not exactly on point for our hypothetical. For example, what we do not have in this case is a videotape demonstrating innocence that has been withheld by the police and/or prosecution (a failure to disclose exculpatory evidence). But what we do have, however, is the destruction of that evidence! The tape could have completely shown the innocence of the defendant if it was not destroyed; our hypothetical is less about the temporary suppression of evidence and more about the permanent suppression of that evidence, which we all must agree is a whole lot worse.
Yes, the prosecution has provided us with the testimony of the detective indicating that the evidence would not operate to exculpate, but in light of the cases above, where there is such an overriding interest in bringing out evidence favorable to the accused, we can see that there has been, at the very least, a dereliction of duty on the part of the prosecution. That has to play a role in our decision, because at a very critical juncture, the police and prosecution have created something they absolutely do not want to create . . . doubt!
Yes, thanks primarily to the issue with the videotape, and the issue with the log, we now have a case dripping with doubt!
And doubt does not favor the prosecution!
To really see the impact of this doubt, contrast this situation with our very first hypothetical, and the extremely high confidence level which resulted. If an extremely high confidence level could be attained with evidence of high credibility and no contradictory evidence, how much would that confidence level be reduced with evidence of low credibility, and a great deal of contradictory evidence? The answer essentially speaks for itself. I will let you fill in the blanks, and then I will offer my opinion:
So, here’s my opinion: there is no way to be confident in a case this doubtful, with so many loose ends. Given all the doubt in this case, I would give a low of 35 and a high of 50. Basically, at its best, to me the case is a coin flip. The primary reason is
the 15 minute gap on the tape. This is suspicious! I don’t want to believe detectives lie, but even more, I don’t want to put an innocent person in jail. As our examination of the law underlying the hypothetical reveals, the police have a responsibility to preserve any evidence which can positively exonerate an defendant, and given the overriding assumption of our system that sending innocent people to jail is the sine qua non of nadirs to avoid, the failure to execute this responsibility must be met with a severe consequence to the government, sending them the message that if they don’t fulfill their responsibility, their power to incarcerate will be reduced or eliminated. If there is a better way to prevent the tyranny of a government manufacturing star chambers that can jail anyone it pleases, I can’t think of it.
You will most likely analyze this somewhat differently, and surely give a somewhat different range. And others will give a range different from yours. Ultimately, in an actual case, this decision would not be made just by me, nor just by you, but with other people organized together in a panel of twelve called a jury.
And this takes us to another extremely significant point not yet raised:
When a jury makes its decision, the most significant opinion is that of the person with the lowest confidence level!
One might think that a jury averages out its responses, and reports that average to the judge, but that is not the way it works. If 11 jurors believe that the confidence level is 100%, and one juror believes that the confidence level is 80%, this results in a mistrial! Rule 31 of the Federal Rules Of Criminal Procedure provides as follows: 3
If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.
In terms of our 95% confidence level, this federal rule takes us to a related rule:
In a normal jury trial, all the jurors must assign above a 95% confidence level for the charge to go forward. If even one juror believes that the case against the defendant is not proven beyond a reasonable doubt, there is a mistrial, and the government will have to retry the case.
So, here is the critical takeaway if you have assigned a higher confidence level greater than 95% (and I am not sure that is possible); understand that if even one person on a jury disagrees with you, there will be a mistrial! Accordingly, it seems extraordinarily unlikely that there would be a successful prosecution based on the fact-pattern above.
At this stage of the game, we have analyzed our evidence using two different models, and we are almost ready to look at the Kennedy evidence in close detail. Before that, however, we need to define the significance of our categories with a few real-world examples, and, following that, discuss one exceptionally important category of evidence, which, if present in the evidentiary database, would be absolutely toxic to the case of the prosecution.
Chapter 5
Reasonable Doubt:
Categories Of Evidence Reducing Confidence Level
In the previous chapter, we analyzed at a high level how four criteria are used to calculate confidence level:
How comprehensive is the evidence?
How credible is the evidence?
How sufficient is the evidence?
How consistent is the evidence?
Now, evidence can be used (obviously) to increase the confidence level of a proposition, but some evidence can actually reduce confidence level in that proposition. In fact, there is a category of evidence (which we can call meta-evidence) that throws doubt on the evidence itself.
Remember the destroyed videotape in one of our earlier scenarios? The videotape was evidence, but that evidence was destroyed under the custodial “care” of the police, and that destruction now becomes evidence about the evidence, i.e., meta-evidence; and certain types of meta-evidence, like destroyed evidence, must reduce confidence level. Here are the most important categories of evidence reducing confidence level, some of them slightly overlapping, most of them meta-evidence:
Altered Evidence
Contradictory Evidence
Destroyed Evidence
Evidence based on data of suspect validity
Evidence derived from deviations from accepted procedure
Evidence inconsistent with a conclusion
Evidence that can support multiple conclusions
Evidence which violates the laws of physics
Insufficient evidence for the primary proposition
Irrelevant evidence (evidence which does not relate to the conclusion [(non-sequitur)])
Non-evidence: phenomena seen as evidence which are not (i.e., conclusions)
Suppressed Evidence
Tests not performed which would have the capability to exonerate the defendant
Now, as we examine the evidence in the subsequent chapters, it will not necessarily be clear into which of four criteria these categories fall.
For example, suppose we find an example of evidence suppressed by the Warren Commission (which will reduce confidence in one or more elements).
With reference to our four criteria, would this be an example of evidence which is not comprehensive, credible, sufficient, or consistent? While this is not of great concern for the dynamic input model, it is a concern for the linear flow model, which may be applicable to future analysis to be performed in this book, and so is included here for those readers who want to use this style of analysis.
So let’s take a stab at classification. While suppressed evidence could fall under more than one of these categories, depending on how we view it, the most precise category would be evidence which is not comprehensive, since suppressed evidence by definition prevents a juror from having a comprehensive (complete) view of the evidentiary picture.
But of course we have all of the other evidence categories listed above to contend with, including destroyed evidence, contradictory evidence, and irrelevant evidence. Under which categories should these be classified? I have given this some thought, and arrived at the following classification:
Comprehensive
Tests not performed which would have the capability to exonerate the defendant
Suppressed Evidence
Destroyed Evidence
Credible
Altered Evidence
Evidence based on data of suspect validity
Evidence derived from deviations from accepted procedure
Non-evidence: phenomena seen as evidence which are not (i.e., conclusions)
Evidence which violates the laws of physics
Sufficient
Insufficient evidence for the primary proposition
Irrelevant evidence (evidence which does not relate to the conclusion [(non-sequitur)])
Evidence that can support multiple conclusions
Consistent
Contradictory Evidence
Evidence inconsistent with a conclusion
This categorization is not perfect, but it provides useful template for a more rigorous version to be created at a future time. In the meanwhile, I am going to explain why I believe these examples relate to the particular criteria.
Comprehensive
Tests not performed which would have the capability to exonerate
Comprehensive evidence is, by definition, a complete record. A test that should be performed, but is not, is by definition a violation of the requirement of comprehensive evidence, which of course, is derived from the due process considerations contained in the Constitution as stated by the Supreme Court. Recall the statement in Berger v. United States that the compelling interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. United States, 295 U.S. 78, 88 (1935)). Justice is not done, by definition, when the only tests performed are those which can demonstrate the guilt (versus the innocence) of a party. From the standpoint of keeping the innocent out of jail, the most important tests to perform are in fact those which can exonerate a defendant. If, for example, the defendant is charged
with murder using a rifle, and he argues that he did not fire the rifle, the factfinding authority reduces confidence (i.e., creates reasonable doubt) simply by not testing the rifle to be sure that in fact it was fired on the day of the shooting.
Suppressed Evidence
For the same reasons listed above, evidence which is suppressed is by definition a failure to produce comprehensive evidence. Three examples of suppressed evidence are evidence we never see due to “gag orders” (orders by authorities to potential witnesses that they should not provide testimony), testimony never given because a witness is not called to testify before the relevant tribunal, and evidence said (truthfully or not) to be buried for reasons of “national security.”
Destroyed Evidence
To destroy evidence is to permanently suppress it! When evidence that could possibly exonerate a defendant is destroyed, it creates the greatest suspicion possible regarding the intent of those destroying the evidence, and a presumption that the evidence destroyed was destroyed because the entity destroying the evidence did not want it revealed. As might be expected, examples of this strike a major blow to confidence level for not just one, but two reasons (missing evidence plus evidence of obstruction of justice).
Now let’s move on to the categories of evidence reducing confidence level related to credibility.
Impossible: The Case Against Lee Harvey Oswald Page 11