Sunday, March 28, 2010

Rape cases are assessed based on the strength of the victim's credibility

Excerpt from a law review article by Prof. Robert Mosteller of the University of North Carolina School of Law. It illustrates a point about liars, and how rape cases are judged in accordance with how strong a witness the alleged victim is:

. . . [There is a[ ] level of uncertainty that a defense attorney faces, which I illustrate by the story of a[ ] client, whom I call Client Not Guilty. Sometimes, as in the case I am about to discuss, powerful evidence exists that shows the government's case or its key witness is badly in error. That evidence may show the client's innocence, or it may rather show the inability of the government to successfully prosecute. For those who care about innocence, this distinction can be very important. Defense attorneys who concentrate on provable guilt do not draw such distinctions, but it is an important additional dimension to the difficulty of knowing when a client is innocent - typically counsel only has contestable evidence showing a likelihood of innocence.

Client Not Guilty was charged with rape. His story to the police, which never varied, was that he and the victim had sex, but it was consensual. He explained that they then had a heated argument after which she summoned the police. He gave the police officer who arrested him the same account. It was not credited by the police.

The evidence that led to the dismissal was the observation of a next door neighbor. The client told me that he had learned that this neighbor had seen him with the complaining witness together sitting and talking before they went inside his apartment where they had sex. The victim's version of the events to the police excluded any possibility of that congenial conversation taking place.

I went to the apartment of the neighbor, a woman I judged to be in her sixties, and asked her to tell me what she knew. She stood at her window and described in great detail what she witnessed, which diametrically opposed not only the point that the client related, but substantial additional parts of the victim's story. She was completely convincing to me and I could discern no bias toward or connection with my client.

I carried her information to the prosecutor, asking him to send the detectives assigned to the case to speak with her and inviting him to speak to her personally. I made no claim to him to know what had happened inside the apartment, but it was clear to me, as I suggested it would be to anyone who spoke to this lady and to any jury, that the complaining witness's version of events both leading up to the alleged rape and otherwise was false. The prosecutor subsequently called me and said he was dismissing the charges. He did not tell me whether he concluded that my client was innocent, that his case was untenable, or that he simply was unsure of guilt.

I do not know that this client was innocent, but the neighbor's evidence leads me to strongly suspect it. On the other hand, true victims may lie about parts of the event because they believe it puts them in a bad light. Moreover, the client did have a prior criminal record, although it included no sexual offenses.

Is this a case of innocence? As I have stated, I do not know. For those who care principally or exclusively about innocence, I wonder how it should be categorized.

Robert P. Mosteller, WHY DEFENSE ATTORNEYS CANNOT, BUT DO, CARE ABOUT INNOCENCE, 50 Santa Clara L. Rev. 1 (2010).