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Old 08-18-2004, 08:17 AM
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Post ARTICLE: No Evidence - court favors GA defense

No evidence courts favor defense

By JACK MARTIN and SANDRA MICHAELS
Published on: 08/17/04


Once again, prosecutors are complaining that the criminal justice system in Georgia is "imbalanced" with "unfair rules that penalize prosecutors" and "make it difficult for victims to see justice." ("State's legal system gives defendants upper hand," Aug. 8). This is simply a myth. In fact, Georgia prosecutors who develop a persuasive case of guilt have no problems in obtaining a conviction.

The Georgia prison system is bursting at the seams. One in 15 Georgians — the highest per-capita rate in the country — is incarcerated, on probation or on parole. The vast majority of criminal cases result in a guilty plea, and of the few that go to trial the conviction rate is well over 90 percent. What's the problem?


Prosecutors complain that in Georgia felony trials, the defense has proportionately more jury "strikes" than in many other states. They fail to mention that Georgia also has an extremely narrow standard for the judge to excuse a juror for cause.

Even if a juror has been exposed to prejudicial and inaccurate publicity and has already decided that the defendant is guilty before hearing any evidence, the juror is still qualified to serve if he merely claims to be able to "set aside" his opinion of guilt and to decide the case on the evidence.

These are mental gymnastics that few, if any, biased jurors could honestly perform. In Georgia, the only means to remove such a biased juror is with a jury strike. It is unfair to compare Georgia with other states with fewer defense strikes, where seriously biased jurors are removed for cause.

There is nothing unusual about the defense having more strikes than the prosecution. In the federal courts, the largest criminal justice system in the United States, a defendant has 10 strikes while the prosecution has six. Indeed, in 1977, after an exhaustive study, Congress rejected an attempt to reduce defense strikes, concluding that an advantage to the defense is necessary to ensure fairness in the process.

Prosecutors also claim that it is unfair to prevent the cross-examination of a defendant about his criminal history. Again, the prosecutors do not tell the whole story. Under Georgia evidentiary rules, the prosecution is entitled to present evidence of a defendant's prior convictions if they are relevant to whether the defendant actually committed the charged offense.

For example, the jury will be informed of any prior drug convictions of a person charged with selling drugs or any prior convictions for sex offenses of a person charged with a sex-related crime. What the prosecutors want is the ability to cross-examine a defendant about a totally unrelated prior offense.

The problem with permitting the defendant to be cross-examined about prior unrelated convictions is that the jury will invariably use this information for the wrong purpose; not to judge the defendant's testimony, but to brand him as a "criminal" who must have committed the crime with which he was charged, whatever the evidence of guilt might be.

Studies show that once jurors learn of a prior conviction, they no longer presume the defendant innocent, no matter how firmly the court instructs the jury about this important constitutional principle.

Thus, allowing the defendant to be "impeached" with a prior conviction effectively shifts the burden of proof to the defendant. The defendant is confronted with either giving up his right to testify or giving up his right to the presumption of innocence. No defendant should be forced to make this choice.

The prosecutors also complain about the right of a defendant to waive his constitutional right to a jury trial and be tried by a judge, if the judge agrees. The prosecutors ignore the fact that the right to a jury trial is the constitutionally protected right of the defendant, not of the state.

Our constitutional system is designed to protect the innocent from wrongful convictions. Because we cherish liberty, a defendant is presumed innocent and the state bears the burden of proof.

The prosecution has its own advantages. Prosecutors have access to investigative, scientific and legal resources unavailable to defendants, except the very wealthy. Studies show that 40 percent of jurors summoned for jury service believe that any person who has been indicted is probably guilty.

Conviction rates are high and the prisons are overwhelmed. It makes no sense for the prosecutors to want even more advantages despite the sound reasons for the rules on the books.
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