Thursday, June 30, 2011

You Know What We Need? A Bigger Trial Tax!

The "trial tax" is a term given by lawyers to the tendency of courts to impose higher sentences on defendants who are convicted after trial as compared to those who plead guilty. There are many rationalizations for the trial tax - the guy who pleads guilty shows remorse, the guy who presents a trumped up defense or gives false or misleading testimony is wasting the time and resources of the state, etc. But there is an inherent tension between a defendant's right to be presumed guilty and increasing the defendant's penalty if he makes the state prove its case. The worst aspect of the trial tax is not that a guilty defendant gets a longer sentence, but that an innocent defendant may be forced to choose between a light sentence or probation if he accepts a guilty plea, or going to prison if he's convicted.

Deborah Orr is outraged that some defendants not only present false defenses at trial, but can display the same type of sociopathy or sadism they demonstrate in their crimes as part of their defense. She's from England, so she's focusing on some of the outrageous accusations the murderer of a thirteen-year-old has directed at some of the witnesses, including the child's father. But the same thing happens here. Orr's solution seems to lie somewhere between imposing a severe trial tax and (although she claims otherwise) weakening the presumption of innocence:
I am not suggesting changes in the law, or for an eroding of the rights of defendants in court. I am suggesting a change of emphasis in sentencing, whereby defendants no longer have nothing to lose from telling lies on a slender punt and absolutely everything to gain if their lies succeed. Clarke's proposed reforms invoked the carrot. Their flaw was that even a person who had no chance of being found not guilty would be further rewarded for pleading guilty. He needs to take another look at his ideas, and invert them. He needs to invoke the stick. Plead not guilty, and risk exposure as a vexatious liar, if you dare. No parole, no privileges, no quarter, just a straight, cold, maximum sentence, if you really think that you want to mess everyone around.
But the thing is, most defendants are guilty and the entire concept of plea bargaining centers around a quid pro quo - the guilty defendant does benefit from pleading guilty. At risk of projecting the U.S. system onto Britain, I expect that the child murderer whose antics so offend Orr is in the same position as a child murderer in a typical U.S. court - he is looking at the same outcome whether he pleads guilty or not guilty, and thus has nothing to lose. Will you inspire him to act more ethically in his defense if you threaten him with serving "life plus ten years" in prison as opposed to simply "life"? Obviously not.

But you can rest assured that the prosecutor who is looking at a difficult case will be warning the defendant, "If you do not take this plea bargain, after you're convicted I will be asking the court to find that you lied, and to give you a sentence with 'No parole, no privileges, no quarter, just a straight, cold, maximum sentence'". Such an outcome would come pretty close to a "gimme", given that the defendant's conviction would inevitably mean that his defense was not believed.

Orr's column reflects a layperson's frustration with the rules of evidence, specifically hearsay rules, and a remarkable lack of insight into how those rules work. She describes how, many years ago, her four-year-old let a woman into their home and, when the woman was prosecuted for burglary, she was told that she could not repeat her child's statements to her on the basis that they were hearsay:
The burglar had knocked on our door, and been let in by my four-year-old son, while I was feeding and settling his three-month-old brother. I knew nothing of this until I found my son sitting on the front doorstep, with the door open. He told me that he had answered the door – which at that time had clear glass panels – to "the lady in the red coat". Where was this lady now? She had gone upstairs, "to see Dad"....

I was amazed when my burglar entered a "not guilty" plea. I was even more amazed when, a few minutes before the trial began, six months after the incident, the Crown Prosecution Service told me I could not mention anything my son had said because it was hearsay evidence. That ripped my truthful narrative to shreds. Thus restricted, I was just not able to credibly explain what had happened.
In simple terms, a hearsay statement is an out-of-court statement being offered as proof of the matter asserted. In our adversarial system each side is supposed to have the opportunity to challenge the other side's evidence and cross-examine witnesses, an ability that is lost if hearsay evidence is allowed without discrimination - but there are many exceptions and exclusions to the hearsay rule, such that hearsay statements often do end up introduced into evidence, and sometimes the statement will be admitted for reasons unrelated to its truth. I expect that most lawyers will infer that the defense brought a motion in limine asking that the child's statements be excluded as hearsay, anticipating that the child would not be presented as a witness, and that at the time the trial started the court had put limits on whether and when the hearsay statements could be introduced. Orr continues,
The defence line was that this woman had found my son in the street and had been searching for me in the house, to deliver him to safety. As a mother herself, she had been appalled to find him wandering in the road, in danger.

But her good deed had been totally misread, and had landed her in this amazingly terrible mess. Her brief went further in her summing up. Citing the James Bulger case, she contended that people such as the defendant were afraid to intervene and save children because people such as me distorted their kind motives so grossly. People such as me, she argued, were responsible for the "walk on by" society. People such as me, she spat out contemptuously, would rather see an innocent woman go to prison than admit that they only saw the bad in people.

The trial took five days, about 20 minutes of which were taken up by the jury's deliberations. Largely, I think, because I had strongly insisted on presenting the hearsay evidence, despite the consequences and against the advice of the CPS,1 and the jury had believed me.
What nonsense. Had Orr presented testimony in violation of the court's ruling she would have been admonished by the court and, at a minimum, that portion of her testimony would have been stricken from the record with the jury admonished to give it no weight. What happened was either that under the court's pretrial ruling the defendant's use of this particular defense opened the door to the introduction of the child's statement, or that the prosecutor successfully convinced the court to reverse its prior ruling based upon the content of the defense case. This is not an instance of a witness bravely staring down the court and forcing inadmissible evidence into the record, resulting in the defendant's conviction; does Orr truly believe that's what happened?

Here's another little secret of the system: prosecution witnesses often lie in court, and rarely face a consequence for lying. Would Orr balance out her trial tax by imposing severe consequences on prosecutors and prosecution witnesses whose arguments and testimony are rejected by the jury, or are later proved to be reckless, deliberately misleading, or presented with full knowledge of their falsity? As she suggests for defendants, should willful falsity be effectively presumed by a jury's rejection of the prosecution's case?

1. I suspect that advice was along the lines of, "If you introduce the child's statements the defense may try to call him as a witness." But ultimately that, also, wouldn't have been Orr's call.


  1. Three quick thoughts:

    1) Perhaps the “trial tax” should vary based on whether the accused: a) simply pled not guilty and forced the government to prove its case vs. b) perjured himself on the witness stand and/or made untrue allegations against others . . . at least in Federal practice the right to plead “not guilty” does not include the right to commit perjury. There’s even a canned instruction you can ask the Judge to give the jurors at sentencing . . . (I’ll grant you the slippery slope and definitional problems.)

    2) You’ve heard the long version of the story before, but as a prosecutor it isn’t a lot of fun to have a witness suddenly and unexpectedly “expand” on his expected testimony and leave you standing there not knowing for sure if you are suborning perjury or not . . .

    3) Prosecutorial misconduct is prevalent? Surely you jest, next you’ll be telling me that even when found out the disgraced prosecutors get to go on TV and become talking heads . . . : )


    PS - From the other side of the fence, we tend to think of your "trial tax" as more of the judge "giving a break" to the guy who pleads guilty than ratcheting up the sentence for the guy who is convicted after pleading not guilty.

  2. Six of one, half a dozen of the other. And again, no consolation if you're not guilty. And with due respect to "most of 'em are guilty," the right to trial is meant to benefit the few who are not.

    In terms of your first point, given that most defendants don't testify your proposal would result in some odd results. The defendant who makes rash accusations through counsel but does not testify would be shielded from consequence.

  3. Yeah, but everyone expects the lawyer to lie, that's why he's not under oath . . . : )

    Or, put another way, the mendacity instruction is designed to put a price to perjuring yourself - advocacy by and/or through counsel statements are viewed differently than testimony under oath.


  4. That's a distinction that, applied your way, would allow a savvy defense attorney to sling the mud while shielding his client from consequence. Even if the defendant testifies.

  5. Correct - and for the record the interpretation in question isn't "mine", it's the Federal courts'. (Which doesn't make your critique any less valid.) You've also set out one of the reasons that most people haven't heard of the instruction despite the fact that it's been around for decades.



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