Have You Been Arrested?

I’ve fairly recently come to the conclusion that criminal law is competitive story-telling.  The facts of a case are static.  (That means that they don’t change.)  The interpretation is up in the air.

The prosecutor will tell the jurors a story.  In their story, you are the bad guy.  You did a crime, the State will say, because you felt something or because you wanted something.  In their story, the government is the good guy, and the jury gets to be the good guy too, because they get to punish the bad guy and right a wrong.

We can respond one of two ways: either we can tell the jury a different story or we can show the jury what is wrong with the prosecution’s story.

The best defense we can offer involves telling the jury a different story than the story the prosecution tells.  We will use the same facts that the State uses, but we will put them in a different light.

In our story, you are not the bad guy.  You might be the hero or you might not be – depending on the facts, you might even be a bad guy, just not the bad guy that the State says you are – but the bottom line is that we will explain to them how the evidence leads to a very different conclusion than the one the State has offered them.

Take, for instance, the robbery of the Monopoly Money Bank and the horse-homicide of famed racehorse Khartoum.  The prosecutor could call show video of you sitting in a car near the bank near the time of the incident.  They could show crime scene photos of your car filled with board game cash and with a painted horse head.  They could call police officers who would testify that you were read your rights and that you confessed to stealing the money and decapitating the horse.  They might even bring in evidence of a motive – they could show evidence that you had financial need for a pile of brightly-colored paper money.  They could show that you’d posted on Facebook about how you thought Khartoum was the dumbest horse and should be gone forever.

The prosecution’s story, then, would be that you, a man who needed board game cash and who had an unusual loathing for particular ponies, had robbed a board game bank and decapitated that horse from the Godfather in order to achieve financial solvency.  How do we know you were the one who did the crime?  You had the evidence with you and you confessed!

In answer to the prosecution’s story, we would need to come up with our own story that encompassed the same evidence – why is it that you would have been sitting in your car near the bank, that you would have had all that evidence, and that you would have confessed if you didn’t do it?

Jurors might initially resist the idea of, for example, false confessions – until you tell them a story that makes them understand why someone might confess to a crime that they didn’t do.  You can’t lie to a jury or to the court (and neither can I.)  What we can do is create a framework for understanding, and when we give them a story that they can understand, we’ve given them a way to (hopefully) get to reasonable doubt and return a “Not Guilty” verdict so that you can go home.

Every story has a beginning, a middle, and an end.  In its simplest form, a story goes like this: you, our protagonist, were living your life.  You were doing the things you usually do.  Then, something happened.

This “inciting incident” could be a number of things, depending on the details of your case.  It could be that someone showed up at your door at midnight with a trenchcoat and a beard and offered you a choice – “drive that car downtown,” this creepy nighttime stranger might have told you, “and wait there.  If you leave, if you call anyone, if you do anything other than what I tell you, I will push this button on my phone and an anvil will be launched off of a skyscraper and onto your beloved family member.”

After that, something else happened that ensured that your life would never be the same.  You grabbed your keys and got behind the wheel, maybe.  You drove downtown.  You waited, your breath fogging the windows, your mind racing – until you heard someone pop the trunk of your car.  You saw someone in the rearview window but were afraid to turn around.  You didn’t want to know.  You just wanted to go home.

The back door opened and someone got in – three someones, you think.  They told you to drive and you did.  They told you to stop and you did.  Suddenly, red and blue lights whoop-whooped you into a near heart attack.  Your passengers ditched – you are responsible for this, the fleeing felons told you, and you better not say anything else.

So the police found a trunk full of monopoly money and the head of Khartoum and you confessed.  You didn’t confess because you did it, you confessed because you felt like you had to say that you did the crime or else a scary bearded man in a trenchcoat would push a button on this phone to send an anvil hurtling off a tall building onto your beloved family member.

Now, finally, this story has almost ended – and it’s their job, as jurors, to see that justice is done and that you aren’t punished for a crime that you didn’t actually commit.

How do the jurors know that your story is true?  Maybe we have evidence like a trenchcoat covered in beard hairs that was found in a ditch three blocks down from where the police picked you up.  Maybe trenchcoat man was caught pulling the same shenanigans with someone else a week later.  Maybe we hired an investigator, who found an anvil on a phone-app-activated springboard on the top of a tall building.  Maybe all we have is your testimony, which counts as evidence too.

Every narrative involves characters who have wants and needs and goals.  If we can explain your case to a jury in a way that lets them understand why a witness might lie about you, how a witness’s memory about what happened might have been influenced, or why you would confess to a crime that you didn’t commit, the jury will be better able to understand our story.  The better the jury understands your story (and the more believable it is,) the better your chances are of going home.

In constructing stories, I like to consider their strongest evidence and evaluate ways that their evidence against you could actually benefit you.

If there isn’t a strong alternative story that we can tell the jury, either because we don’t have the witnesses and evidence available to support our story or because you aren’t comfortable testifying for any reason, we can focus instead on micro-narratives – we can point out holes in the State’s evidence and suggest possible alternative ways to interpret individual pieces of evidence.  If the evidence doesn’t provide us with a story to offer that counters the State’s narrative, we can, at least, insist that the government carry its burden – the prosecuting attorney has to prove you (1) guilty (2) beyond a reasonable doubt (3) of each and every element of an offense.  They have to overcome your constitutionally-guarded presumption of innocence, and if they don’t, you have a right to a Not Guilty verdict, even if we don’t have a story to prove you innocent.

To sum it up, your Iowa criminal defense attorney will help you try to build your own story that the jury likes better than the government’s story.  Failing that, they will help by pointing out flaws in the government’s story.