How the System (Really) Works
by
Tim Kulp
It is dangerous to be right when the government is wrong.  - Voltaire "What luck for rulers, that men do not think."  -Adolph Hitler
It is a curious situation. But the way it works is that the prosecution's duty is to see that justice is done, and the duty of the defense is to do nothing. The defendant, as you know, need not testify, need not present any evidence, need not call any witnesses, and may rely soley on the prosecution's burden of proving the charges beyond a reasonable doubt and rely on the fact that he or she is presumed innocent.

He or she does not or may not have the resources anywhere equivalent to that of the prosecution, and in fact, may not have a dime. Resources are important. For example experts are deservedly not cheap for either the state or the defense.

But he or she who relies upon the constitutional protections in this setting is a fool. The system does not work that way.

The defense starts out two paces behind for a hundred reasons. Consider a few. People naturally believe a guy in a uniform or a suit  with or without extensive creditials, over Mr. Regular Guy whose name at the call of the case is immediately associated with the stigma of the description of the charge.

Further, the defense must overcome the notion the jurors may draw that the guy must have done it or he wouldn't be charged, regardless of their being told of the great "cloak of innocence." They nod and set their mouths when they hear that, and hope that the cloak is tightly around their shoulders should they ever be accused, but do they really believe that Mr. Regular guy who the state has developed a "case" against for some heinous crime, didn't do it and that what they will be hearing in the ensuing trial might sway them and convince them, (after great and laborious deliberation) that he just might be guilty after all that presumed innocence?

Not only no, but hell no. In practice it works the other way around.

You see, it is an adversary system because the state calls the trial and holds all if not almost all the cards. The defense is not compelled to nor can be expected to present their version of the truth or someone elses, unless they choose to present a defense. The prosecution is supposed to give the defense a fair chance by revealing that which is necessary to prepare a defense, and the defense is supposed to defend.

The truth for the issue(s) of the trial is what the fact finder deems it to be at verdict, save for appeals. Veridicto! And the additional pill to swallow is that while the verdict is called the truth, it is not, nor can it ever be for precisely one-half of those whose interests lie therein. If the verdict is guilty, the truth is not the truth for the defendant. If the verdict is not gulity, the truth is not the truth for state and victims and police.

You see to me, the truth is what we all have the right to deem it to be.  That is our right and the fruit of our freedom. But when issues and tragedies and arguments and crimes and misdemeanors require the courtroom, the jury gets to decide what is the ..."half-truth."

Timothy Clay Kulp, Lawyer
Law Office of TImothy Clay Kulp
116 Church Street, Third Floor
Charleston, SC 29401
843.853.3310
843.853.3390 fax
tim@kulplaw.com
www.kulplaw.com

http://www.southcarolinaduilawyerblog.com

 


 
 
How the System Works
Truth in Justice