Guilty Until Proven Innocent

As many of you probably already know, a Private Investigator must not only stay up to date with the fluidity of our ever-changing laws and regulations, but, they must also be able to interpret and diligently apply them to particular cases they may be working at a given time. Most of the time the cases we work are non-criminal in nature; however, sometimes, we conduct parallel investigations with (local and/or state) law enforcement. When this occurs, it is extremely important for any decent investigator to not only understand the law, but also it’s practical application in real-life.

Take for example the way in which a criminal proceeding may be initiated in Virginia. Most criminal cases enter the court system via indictment, which inherently has some added protections, or safeguards for the accused. After an initial determination of probable cause (based on the apparent set of facts and circumstances, any reasonable and prudent person would reasonably believe the accused committed a crime) has been founded, usually by a Magistrate (a quasi-judicial officer), a preliminary hearing is scheduled as another check on the probable cause to ensure it actually exists. A preliminary hearing is a sort of mini-trial where the prosecution usually presents witnesses and the defense has the opportunity to cross-examine these witnesses. If no probable cause is found, the accused should be set free; however, that almost never happens. Instead, the Commonwealth’s Attorney (Virginia prosecutor) will likely enter some form of dismissal of the charges and simply refile them via what is known as a direct indictment to a Grand Jury.

Grand Jury proceedings are held in secret, and although a court reporter may be present, it is nearly impossible to obtain a Grand Jury transcript in Virginia simply because it is not considered a judicial proceeding. The job of a Grand Jury is simply to determine whether or not there is enough evidence against the accused to warrant further prosecution. In other words, technically, the Grand Jury is determining whether or not probable cause exists. The problem with these secret proceedings is that only select inculpatory (tending to establish guilt) evidence only is presented to the Grand Jury by the Commonwealth’s Attorney.

For instance, a man accused of shooting and killing another man, even if it seems to be a clear cut case of self-defense, a Grand Jury would likely only hear that the man shot and killed another man. The Commonwealth’s Attorney would not present any exculpatory (tending to establish innocence) evidence whatsoever. In other words, the Grand Jury wold not hear that the man killed was attacking the accused, and that the accused feared for his life. This is simply because in a case of self-defense, the burden of proof shifts to the defense to show that beyond a reasonable doubt (level of evidentiary sufficiency necessary to convict a person of a crime) the accused feared for his life and that had he/she not acted in that way, he/she would have or could have died or at least felt reasonably subject to imminent grave bodily injury.

Direct indictments are usually used by the Department of Justice when prosecuting federal crimes; however, Assistant US Attorneys (Federal prosecutors) are well-known for only certifying cases to a Grand Jury they reasonably know they can win at trial, should it come to that (only about 5% do go to trial). On a state level, however, this may not always be the case. Commonwealth Attorneys are concerned with their conviction rates, which are nearly 100%, but, they’re also concerned with bad publicity. Many times, a C.A . may feel pressured into prosecuting an individual even though they feel no crime has been committed, or that they have a weak case. This thing known as “prosecutorial discretion” is supposed to somehow be a part of our system of checks and balances, but in actuality, prosecutors answer to no one but themselves.

In Virginia, the Commonwealth’s Attorney is an elected official, and per the Virginia Constitution is the top law enforcement official in the County. Bear in mind our criminal justice system is part of a trickle-down theory by which the more persons a state can incarcerate, the more money it will receive in Federal assistance to be used by the counties and other localities within a given region. The United States is a corporation, and we generate billions of dollars by imprisoning our citizens at a rate higher than any other country in the world.

This is precisely why more than 90% of criminal cases nationwide ultimately settle via a plea bargain. All plea bargains are wins for the government because they result in at least one conviction. And what does the government gain over the accused via a plea bargain? They avoided a costly crap shoot in the form of a trial by jury, a Constitutional protection. What does the accused lose by accepting a plea bargain? They forfeit their Constitutional right to a trial by jury, and they forfeit their right to appeal in almost all cases, not to mention they now have a conviction on their record that is no different than having been tried by a jury of their peers and found guilty. So, why do so many cases end up with a settlement? Money.

Even the Virginia Circuit Court Clerk’s Manual states that a jury trial is a “much more complicated matter” than a bench trial (trial by judge). Judges may only preside over a handful of jury trials that actually result in a verdict during their tenure. If most accused individuals simply did not accept a plea, and demanded a jury trial, our criminal justice system would collapse. The Code of Virginia states that, notwithstanding delays by the defendant, the C.A. has nine months to bring a case to trial if the accused is not incarcerated, and only five months if the accused is incarcerated, and that if trial does not commence within those time frames, the accused is forever released from prosecution of those crimes. It is easy to see how the system would inevitably implode.

The fragility of our criminal justice system is usually not realized by either prosecution or defense; however, there are those times when the accused takes their case to trial by jury and is acquitted that this fragility is felt by the prosecutor, and embraced by the accused, vindicated. At times, being a Private Investigator feels more like being a paralegal because it requires an intimate knowledge of the law. The more cases worked, the more research completed, and the more knowledge gained, the more disgusting the game becomes. After being involved in a criminal case, an investigator may come to realize the way things really are, as the actual differences between legal principle and its real-life practical application elicit no catharsis.