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In a typical criminal investigation and prosecution there is an initial pledge to arrest a suspect based upon facts and circumstances that a police officer perceives to constitute probable cause, followed by a commitment to prosecute and convict that suspect arrested, by a prosecutor. This article suggests that there may also be personal human elements that steer a criminal investigation and/or prosecution that are contrary to seeking the truth and unrelated to evidence. A smart litigator who recognizes that a criminal investigation and/or prosecution is driven by something other than substantial competent evidence of guilt may gain an advantage by exposing these personal human factors in some manner at the appropriate time.

When police are confronted with any incident an opinion is soon formed by the responding police officer(s). A police report is written based upon perception of variable facts, gut instinct, and personal belief of the officer. The officer will indeed swear to their belief under Oath. Other supporting police reports will also be written, oftentimes referencing original reports. Soon conclusions are drawn based upon written police reports. There will be a second and possibly a third concurrence of the same factual conclusions drawn, by supervising police authorities. At some point the police investigation may be closed by an arrest. A police - case filing investigative package- resembles a screenplay replete with individual scripts (witness statements) for people participating in the forthcoming prosecution that will act as State's witnesses. Soon thereafter that screenplay will spawn the prosecutor's theory of prosecution. If nothing intervenes in this process a charging document will be drafted and a criminal prosecution will soon follow.

It should come as no surprise that some criminal investigation and prosecution processes are flawed because of a simple human elements- perception, pride and bias when used as a shield to protect one's personal reputation. It is human nature for a person to ignore and discard facts presented that are contrary to one's position, once opinions are formed and conclusions are drawn. It is common sense that one generally does not argue facts that weaken their own position. One's receptiveness to differing theories may shut down. Objectivity sometimes vanishes. Bias may ensue if not kept in check. At some point one's personal reputation may be at stake, especially in more serious crimes charged. Some prosecutions become very political. These are all human factors that may be contrary to substantial justice in a civilized society when they occur and drive a prosecution to the point where objectivity is lost. These things do occur. A smart litigator can gain a distinct advantage by recognizing their existence in the prosecution's case and then by building a defense case that takes them into consideration, so Jurors can see ulterior motives present.

Many jury panels in Voir dire have opined that the purpose of a criminal defense attorney is to create reasonable doubt, a common misconception. Whenever a defense attorney attempts to invent a fake doubt they are generally made to look like a fool by the prosecutor and viewed as a liar by the jury. Juries are rarely tricked by Trojan horse defenses, which does not stop some defense attorneys from using them anyway. Reasonable doubt has been said to derive from conflicts in the evidence, lack of evidence, and from the evidence itself. It is not created, but rather, unearthed from facts already in evidence, although it may be the defense attorney's job to get those defense facts into evidence to begin with at trial. There is quite a distinction between defending against the prosecution case verses affirmatively proving a reasonable hypothesis of innocence at trial.

A prosecutor has been referred to as a Minister Of Justice, and many fine prosecutors are just that. Others not so much, when a win-at-all-costs mentality becomes a personal goal. Conversely, some defense attorneys adopt a win-at-all-costs mentality and do some underhanded things at trial, hoping that it is too late for the prosecutor to recover in trial, and ignoring their own personal reputations.

Rest assured that there are human elements to all criminal investigations, prosecutions, and defenses that involve perception, conclusions of fact, bias, pride and personal reputation at some level. Oftentimes knowledge of the existence of these human elements can steer a defense case toward a successful result for a putative defendant, or work in a prosecutor's favor when a prosecutor knows in advance that the specific defense attorney on a case cannot be ethically trusted.

This article should not be construed as constituting legal advice. It is intended solely to make one ponder the human elements that may appear in criminal trial processes, as authored by a non-attorney. You should consult with an attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida

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