Part 1 of a 3-part series about the Right to Confrontation.
By Peter B. Paris
There is an old adage in the legal world that warns us, “BEWARE: Bad facts make bad law.” In other words, sometimes when “bad facts” occur, like a horrible crime or tragic event, policy-makers react with short-term legal “fixes” which end up having negative, unintended consequences down the road. It’s a little different from “throwing the baby out with the bath water,” but the effect is the same.
Typically, it is lawmakers who overreact to “bad facts.” After all, they are the ones fielding the angry phone calls and emails from constituents, demanding some concrete action that will “make sure [fill in the blank] never happens again.” To silence the phones and to refill the campaign coffers, legislators respond to the “bad facts” by drafting a new draconian law designed to prevent the “bad facts” from recurring. One prominent example of this is the crack/powder cocaine sentencing disparity that originally had some short term impact on the problem of crack distribution, but it did not stop the problem and mostly caused long term harm. Recently, the U.S. Sentencing Commission and the U.S. Supreme Court have criticized that “bad law.”
Enforcers of the law are also susceptible to making “bad law” in reaction to “bad facts.” Perhaps the best contemporary example is Michael Nifong, the prosecutor in the “Duke Rape Case.” Within hours after the “Duke Rape Case” story broke, vengeance was already in the air. Reporters spoke in dour tones about a racially motivated gang-rape over images of police-tape flapping in the breeze. Nifong, the local prosecutor, held daily press conferences in which he leaked new evidence and/or showed increasing outrage toward the accused. But, as the “bad facts” soon began to unravel, the “bad law” was revealed: Nifong had ignored and concealed critical evidence showing that the allegations were false, and he had done it in order to feed the public’s appetite for vengeance.
Imagine how it must have felt to be accused of such a horrific crime, knowing you were innocent. Imagine the police, the press, the prosecutor, and the public at large looking at you like a monster. Where do you turn in such a situation?
According to the Constitution, you turn to the courts. Especially when faced with “bad facts,” judges must remain the cold, clinical defenders of the Constitution -- the set of principles which require judges to treat every defendant as if he were wrongly accused. Judges must always force prosecutors to prove the State’s case beyond a reasonable doubt with reliable, admissible evidence. “Bad facts” enflame the public, make cops cut corners, and make prosecutors hide evidence. But, if our courts also succumb to the emotions aroused by “bad facts” and choose expediency over the rights of the wrongly accused, the Rule of Law has been lost.
The Toughest Witness of All: the Child-Accuser
Crimes involving child victims are a difficult subject to discuss. They occupy a special place in our hearts and minds. When we hear about an adult man being beaten or even killed, we are rarely upset. But when we hear of a child being hurt, especially at the hands of an adult, we all have a visceral reaction. And so it should be.
From a legal perspective, however, cases that involve child-accusers present unique challenges. For prosecutors, any case in which a child is the primary witness and source of evidence is extremely difficult to prove. This is especially so when the child is the accuser, and the crime is child abuse. The most notable dilemma for the prosecutor is whether to put the child-accuser on the witness stand. Obviously, prosecutors and family members do not want to re-traumatize the child by “forcing” the child to testify. But the big problem for prosecutors is that young children are, generally speaking, unreliable witnesses.
Although most young children are able to observe and report facts accurately, children at the center of abuse allegations are under immense pressure. It is unfortunately true that young children have been known to make things up, confuse real life with fantasy, or just get so caught up in a story and the attention that comes with it, that they feel they cannot go back and change it. It’s not that young children want to intentionally make false accusations against innocent people, or that they do so often. It’s just that a child’s mind can be a complicated place, and children do not always comprehend the gravity of misplaced accusations until it’s too late.
Because of the gravity of child abuse allegations and the relative unreliability of children as witnesses, accusations by children must always be closely examined. If the accused is guilty of the crime, the facts will bear that out. But, if a defendant is wrongly accused by a child, we must make sure to discover it, before we seek vengeance upon the accused. Thus, when deciding how a trial will be conducted and what evidence will be admitted, judges must always keep in mind the possibility that the defendant has been wrongly accused.
Continue reading "New Jersey Supreme Court Makes "Bad Law" in Child Abuse Case, Denigrating Our Constitutional Right to Confront Our Accusers (Part 1)" »
