Not Saussure

April 14, 2007

Duke University lacross case and due process

Filed under: Law, usa — notsaussure @ 1:12 pm

Via Tiberius Gracchus, the depressingly predictable news that, in the wake of the final collapse of the case against the Duke University men’s lacrosse team members for alleged rape and kidnapping, people have started calling for the public identification and prosecution of the complainant in the matter.

We’ve had similar cases here, of course, and my view remains the same; that, whatever the details of the individual case, such demands are, as a general rule, utterly misguided and rest on a complete misunderstanding of the burden and standard of proof in a criminal trial. Briefly, in any criminal trial, the prosecution has to make the jury sure that the defendant is guilty; nothing less will do, so if the jury think the defendant is probably guilty but there’s a chance, albeit a pretty slim one, he or she isn’t, then they must acquit.    And that’s as true in a prosecution for perjury, or for attempting to pervert the course of justice by making a false complaint to the police, as it is for rape.  

In practical terms, then, unless you’ve got persuasive independent evidence that a complaint is false, prosecuting the complainant is pretty much a non-starter, and quite rightly so.   She says, ‘Despite what people think, I’m telling the truth and the members of the lacrosse team did rape me’ and, in effect, we run the rape trial only with the burden of proof reversed.    The prosecution now has to prove — an uphill task, without independent evidence — that something didn’t happen, and, if at the end of the exercise, the jury is left thinking, ‘Well, I’m pretty sure she made it all up, but there’s a chance it happened the way she said,’ then they’ve got to acquit.  

Then, of course, on top of having had to suffer consequences of having the allegation of rape hanging over their heads, the defendants would have to live with the consequences of their accuser’s acquittal.   No thanks.    Obviously if there is persuasive evidence that she deliberately made a false complainant, then she should be prosecuted, but the mere fact that, on closer examination, the complaint didn’t seem very convincing isn’t, and shouldn’t be, enough.

Closer examination of the history of the case reveals a complete and utter shambles.    The District Attorney, Mr Mike Nifong, seems to have been far more interested in launching a sensational and high-profile prosecution in a politically charged atmosphere in the run-up to an election than in trying the case fairly, and is now facing very serious charges (pdf) before his bar association over his conduct of the case.   These allege that he made ‘improper pre-trial public statements and misrepresentations’ (and highly prejudicial ones, at that) about the case (paras 10 — 181),   that he withheld or suppressed exculpatory DNA evidence (paras 182 — 229) that should, in the normal process of disclosure, have been turned over to the defence and that he made misrepresentations and false statement to the Court and to opposing counsel (paras 230 — 278) and the State Bar’s Grievance Committee (279 — 291).    As I’ve pointed out before, when we see false allegations of rape go too far before the charges are thrown out, it’s usually because the disclosure process has gone wrong (with the suspicion that people are trying to cover their backs, of course). 

If anyone should be facing charges of attempting to pervert the course of public justice it should, in my view, be Mr Nifong rather than the complainant in the matter, if half the allegations about his conduct of the case are true. 

He seems to have been assisted in this by the — to British eyes — extraordinary way in which the media can, and does, in the US try the case before it gets anywhere near a jury.   CNN’s and Court TV’s Nancy Grace seems to have been particularly remiss in this respect and was deservedly skewered by Jon Stewart in The Daily Show. I particularly liked the courageous way she dealt with the collapse of the case.

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  1. The accuser has been named, as it happens, by several news outlets and bloggers; Fox News have an extremely detailed biography of her on their website, which includes details of previous allegations against other men which were never proved – the clear inference being that she had a history of fabricating such stories.

    It’s no surprise to learn that American media take the rules on anonymity less seriously than we [generally] do. As you say, I’d be all for naming false accusers if we could know with reasonable certainty that their allegations were false and/or malicious.

    Anonymity for the accused?

    Comment by Mr Eugenides — April 14, 2007 @ 2:53 pm

  2. I realise she’s been named, of course, but I didn’t myself name her on principle (and partly out of habit, I suppose, since I’m more used to English law and practice).

    I’m very much in two minds about the propriety of naming her at all, in fact, since, in effect, this makes her a pretty safe target for any rapist in North Carolina; such people can now be reasonably sure, I think, that so long as they take some elementary precautions no one is now going to treat any complaints from her particularly seriously. This is not, I think, particularly desirable, no matter how much one might think she’s the author of her own misfortune.

    What I can’t get over is that, had the matter been properly investigated from the start, it wouldn’t have got anywhere. Her previous record of making unproven allegations should have alerted the prosecutors about dangers of relying on her uncorroborated evidence, thus making them very chary of doing anything without forensic evidence to back her up.

    That DA, Mr Nifong, is a disgrace.

    Not sure about anonymity for the accused. Would we have it only in cases of rape allegations? After all, allegations about other sorts of crime are extremely damaging if untrue. Selling honours, for example, or conspiring to pervert the course of public justice… must be very upsetting to have your name dragged through the mud if you haven’t actually done what’s alleged.

    I’m really in two minds about that one.

    Comment by notsaussure — April 14, 2007 @ 4:21 pm

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