“Alternative Facts” In Court

Slate has published an interesting dialogue between Judges Posner and Rakoff on issues of truth and justice in a world of “alternative facts.” Some of the comments:

Rakoff:  “Discovering the truth is, of course, often difficult. To give just one example, one of the most common reasons for false convictions is inaccurate eyewitness identifications. These eyewitnesses—who powerfully point a finger at a defendant and declare that that is the person they saw commit the crime—are almost always trying to tell the truth as best they remember it. But for reasons that have more to do with limitations of human perception and memory than of bad police practices or subjective biases, their identifications are often wrong. Thus, no fewer than 72 percent of the more than 340 persons exonerated by the Innocence Project were convicted on the basis, in part, of inaccurate eyewitness identification.”

“[T]he Fifth Amendment privilege is one of the few remaining limitations on prosecutorial overreach. In the typical criminal case, the prosecutor has been able to prepare his case well in advance of indictment while the defendant has few, if any, investigative tools at her disposal. The only advantage she has is the ability to remain silent. Then, after indictment, the defendant receives very little in the way of discovery and is typically facing, under current law, lengthy imprisonment if she is convicted. As a result, she faces tremendous pressure to plead guilty; and in fact, the defendant does so in 97 percent of all cases (including a fair number of cases in which the defendant is in fact innocent but prefers to plea bargain for a lesser sentence than she would face if convicted at trial). But if she is innocent and wants to go to trial, the only remaining advantage she has is that, at the trial, the government will have to prove her guilt by independent evidence rather than by attacking as “incredible” whatever she might say in her defense if forced to testify. This is more than simply a tactical advantage: It is the one remaining respect in which the government is actually “put to its proof”—that is, obliged to come forward with independent evidence of guilt.”

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