Now and then someone, often a parent, will complain to me that there is “no evidence” that my client committed a crime. That conversation goes something like this:
Parent: “He’s charged with driving under the influence, but I don’t even know why they arrested him. There isn’t any evidence that he did it.”
Me: “Well, the police must have some reason. Do you have any idea what that is?”
Parent: “The police saw him run a stop sign. And crash into a tree. And then he admitted that he had been smoking marijuana before driving. But they didn’t do any blood tests or urine tests. They didn’t find any marijuana on him. So there’s no evidence.”
Me: “Do you watch a lot of CSI?”
Watching CSI and its ilk can give you the impression that every criminal prosecution focuses on blood tests, hair samples, and fingerprints. They don’t. Most criminal prosecutions have none of those things. And, although any of them might be evidence in a criminal trial, the most important evidence is always testimony; people on the witness stand answering questions. And criminal defendants are routinely, and properly, convicted based on testimony alone. So, if someone saw the crime take place, and they will come into court and say so, that is enough evidence for a conviction. The jury doesn’t have to believe that witness. But if the jury believes the evidence, then the evidence is no longer mere evidence, it’s proof.
And the most important question about the evidence is whether the jury believes it. It doesn’t matter if the evidence is ‘true.’ (Real lawyers roll their eyes when TV lawyers object to evidence on the basis that it is not true.) The purpose of a trial is to decide whether the evidence is true. If the jury (or the judge, if a judge is deciding) believes the evidence, then, as far as the system is concerned, it’s true. Once a jury decides, that decision can’t be appealed or attacked on the basis that the jury was wrong. The attack has to be something new - inadmissible evidence was offered to the jury, or the law was explained incorrectly, or the prosecution withheld evidence from the defense, or the defense attorney was incompetent. Those could affect the jury’s decision (and errors that couldn’t possibly effect the jury’s decision can’t be used to attack that decision) but none of them are direct arguments that the jury is wrong.
Obviously, I pay very close attention to the evidence that may be offered at trial. I want to know if I, or the other side, will be able to find it, if it is legally admissible, if it is likely to be believed, and how it fits in with the rest of the evidence. Whether it’s true is not for me to decide; that’s what juries are for.
