From the June 2008 Idaho Observer:

Criminal law—Part 1: From theory to conviction

In order to properly learn a discipline, we must first understand its basic principles. Criminal Law is no different. The fact that it is "Criminal Law" and not "How to use a hammer" should have no bearing on learning. It’s honestly not that hard to grasp, so let’s remove the stigma so we can see how criminal law really works.

When someone is arrested the government begins building a case. This happens through collecting "evidence." Evidence comes in many forms—not all are important for this particular discussion, but may include such things as statements, clothing, and residue.

The prosecuting attorney takes whatever evidence there may be and creates a "theory." This is important to understand. Regardless of the type or amount of evidence, it is the prosecutor’s job to prosecute those believed to have committed a crime. Though there is a presumption of innocence ("innocent until proven guilty"), the prosecutor believes the person arrested is guilty.

Now, the prosecutor makes up a theory. He makes it up. This is fiction, like John Saul or Stephen King would write—fiction, falsehood, a tale, a story. He makes up a story that he thinks will convince a jury or judge to convict the accused person.

The defense attorney is also said to have a theory. This is true for all defendants, including those who assert innocence of the charge. It is understandable that a person guilty of the offense charged would make up the best story possible in an attempt to win the trial.

Why, though, is it considered a mere defense "theory" when the defendant states he or she is innocent? Why isn’t the defendant considered by the court to be innocent until the government’s "theory" proves their guilt?

This is due to the amount of information available to support a defendant’s plea of innocence. If the defendant is innocent but does not trust the defense council, not much information is going to be given to the attorney to form the defense to prove innocence. In this scenario, the defense counselor would need to write some fiction as well, based on his client’s assertion of innocence. Another reason it is a defense "theory" would be due to the lack of evidence supporting the defendant’s story. This could be due to destruction or withholding of evidence, or maybe it is undiscoverable for some reason.

The proceedings at a criminal trial are said to be adversarial. This means that two sides come to the bench to present their side of the story. The stories presented can only be termed "theories" at this point because the jury, or the judge if it is a bench trial, has not yet decided who to believe. The story that is believed by the trier of fact (judge or jury) is then called "truth" even if it is not representative of what really happened.

The judgment of the court is considered a "common law" ruling. Common law means a judicially-created statute, right, or opinion. [Note: This is not my understanding of common law. However, upon reviewing Black’s and Bouvier’s law dictionaries, I can see how the "judgment" of a statutory/criminal law violation can be construed by the judiciary as a function of common law—a very interesting twist that the author develops further in part two of this article. ~DWH]

Some refer to the judgments of courts as "legal fiction." This is due to the case being decided upon theories, or fiction.

The books in law libraries containing court cases are termed "case books" because case law (judgments from courts) are shown in them. All those cases are common law.

Because a criminal trial is based upon made up stories judged upon a believability scale, it is imperative that we be able to think as clearly as possible. It is therefore necessary to remove our emotions from the case. Colossal errors occur in life due to emotions acting without the benefit of intellect. In order to confront the government’s fictionalized story, you must remove your emotions, think clearly, and pay attention. You can visit your emotions some other time. They are part of you and aren’t going anywhere.

If you understand what you just read, stay tuned for discussions on common law vs statutory law vs constitutional law, standards of review, and more.

Sempre Avanti

D. M. Salerno

Toledo, Ohio

("Sal" brings up some very interesting "theories" about common law. We plan to run with part two of his four-part series in the July, 2008 edition).