The prosecution in a case in Tennessee was stupid enough to file a motion in limine to stop the defense counsel from referring to it as the government. The response of the defense counsel in that case, the aptly named Drew Justice, is classic. A small sample:
Go here to read the brilliant rest. In Illinois the prosecution is referred to as “the State” and I have had endless amounts of fun with that appellation in cases over the decades. Almost all criminal defendants are guilty as sin in my experience, but there is a vital distinction between actual guilt and the prosecution meeting its burden of proof. A criminal prosecution is always an act of the government and as such it must always be held to the highest standards before a citizen is punished for disobeying the laws enforced by the government. Of course judges are also part of the government, something that judges often do not like to be reminded of, but that is a post for another day.
In Scotland, all prosecutions are brought in the name of the Lord Advocate. The sederunt begins with the clerk saying, “Call the diet, Her Majesty’s Advocate against AB.”
The prosecution in the High Court is referred to as “the Crown” (“Crown witness” or “Crown production”) and prosecuting counsel is “the Public Prosecutor.” There was one judge with a slight speech impediment, who pronounced it very like “clown.”
In the Sheriff Court, the prosecutor is “the Fiscal.” The Procurator-Fiscal, to give him his full title was, as the name suggests, an officer of the revenue. His interest in crimes was in the fines, forfeitures and escheats that he could claim for the Crown, so very much part of the government.
The accused is “the Panel” (an old word for list – the list of accused) or “the Accused” and the victim is “the Complainer.” “The Defender” is confined to civil proceedings.
In France, I once heard a rather bold advocate, in an impassioned speech, remind the jury that the Procurator of the Republic shared his title with Pontius Pilate
Almost all criminal defendants are guilty as sin in my experience, but there is a vital distinction between actual guilt and the prosecution meeting its burden of proof.
I would not second-guess your informed opinion of the state court assembly line. It just seems that quite a few high-profile cases are awfully dubious, most particularly those in federal court. Glenn Reynolds has been writing on this subject.
You certainly can find egregious prosecutions Art, and I have defended against some, but the vast, vast bulk of prosecutions are of manifestly guilty individuals.
I’m going to forward both motions to my brother and see if he’ll try declaring, “Captain Justice, Guardian of the Realm and Leader of the Resistance for the Accused Citizen, Your Honor.” We’ll see if judges in Delaware have a sense of humor.
The prosecutor’s original motion complaining about being referred to as “the Government” is just plain stupid. But in cases listed US (or NY, IL or whatever) v. Collins is it the gov’t or the people who are against me? I suspect many people are prosecuted for things the people are for but the gov’t is against.
Donald R. McClarey
“[T]here is a vital distinction between actual guilt and the prosecution meeting its burden of proof.”
My favourite illustration of this is the Scottish case of Creasey v Creasey [(1931) S.C. 9] It was not a criminal case, but an action for divorce. However, at that time, the criminal standard of proof applied in consistorial cases, viz. proof beyond reasonable doubt and on corroborated evidence.
Mr Creasey averred that the Defender, Mrs Creasey, had committed adultery with the Co-Defender, against whom he concluded for expenses. The evidence against the Defender consisted of various admissions of hers, corroborated by evidence of clandestine association. Accordingly, the Lord Ordinary found “facts, circumstances, and qualifications proved relevant to infer that the Defender committed adultery with the Co-Defender, therefore divorces &c”
Now, the Defender’s admissions were not evidence against the Co-Defender, for he had neither authorised nor adopted them; as against him, they were mere hearsay (An excellent rule, for her admissions might be quite untrue and induced by hidden and private motives) and the evidence of clandestine association was uncorroborated. So, the Lord Ordinary found “the Pursuer has failed to instruct facts and circumstances relevant to infer adultery betwixt the Co-Defender and the Defender” and he was assoilzied from the action.
Once “Defendant” has made public domain, it is forever. Who cares that one was found innocent of the crime. One will always be the “Defendant.”
[…] Some Lawyers Do Have a Sense of Humor – D. McClarey, T.A.C. […]