Friday, July 12, 2013


I write this post at 11:00 PM on Friday, July 12, and the Zimmerman jury has suspended deliberations until tomorrow. I have been asked by several media persons what I think the jury will do. My answer has uniformly been "They will acquit, convict, or hang." I gave up predicting jury verdicts long ago. One media person did talk me into saying that I thought that a conviction as charged of second degree murder was the least likely verdict, and that it was a tossup whether the jury would convict of manslaughter or acquit. Observers of the trial, no matter which side they prefer, may have grounds to be disappointed by whatever verdict the jury returns, but they should not be surprised.

I have also been asked several times  about the enduring significance of the Zimmerman case. What answers will the trial provide about race relations, gun control, concealed carry permits, and stand your ground laws? Criminal trials are not designed to provide these kinds of answers. Despite the dogma that “the very nature of a trial [is] a search for truth” [Nix v. Whiteside, 475 U.S. 157, 166, 106 S.Ct. 988, 994, 89 L.Ed.2d 123 (1986)] criminal trials don’t even do a good job of discovering the truth. 

A properly conducted criminal trial is more a test of proof than a search for truth. It is the prosecutor’s job to decide what she believes the truth to be and then go into court and try to establish that truth beyond a reasonable doubt. The defense attorney’s job is to test that proof by subjecting it to rigid scrutiny.

When the system works properly and the state proves a defendant guilty beyond a reasonable doubt, we can have a high degree of certainty that the defendant is truly guilty. Given the asymmetrical burdens of proof in a criminal trial (the defendant need not prove anything), we cannot say with any degree of certainty that someone who has been acquitted is truly innocent. In order to insure (as much as humanly possible) that the innocent go free, we tolerate a system which often allows the guilty escape punishment because of a failure of proof. The defense attorney who ethically performs her job of holding the prosecution to its burden of proof performs a noble and necessary task, even when she helps a criminal escape punishment. And since we designed the criminal justice system to work that way, we shouldn’t get excited about the possibility that a guilty person may “get away” with committing a crime.

To summarize: Can a criminal trial answer any of the great questions of the day? No. A criminal trial can answer one question and one question only—“has the state proved the defendant guilty beyond a reasonable doubt?” What the coverage of the Zimmerman/Martin case needs is for everyone to back off, take a deep breath, calm down, and not try to make the trial settle any questions other than the question whether the state has carried its burden of proof.