Serial and the Burden of Proof

by / Dec. 26, 2014 1am EST

Serial, the critically acclaimed podcast, ended yesterday. The podcast, from the creators of This American Life and hosted by Sarah Koenig, explored the 1999 Baltimore murder of a high school student, Hae Min Lee. Her 17-year-old ex-boyfriend, Adnan Syed, was convicted for the murder and is serving a life sentence. He claimed, and continues to claim, innocence.

As a former prosecutor for the State of Alaska, I convicted many people of the most serious of offenses. I prosecuted sex crimes and homicides. During jury selection, I would explain the law to potential jurors—that the burden of proof required to convict is not one of absolute certainty; that doubts which are speculative in nature must be put aside; that you cannot consider the possibility of penalty or punishment; that if you accept the testimony of even a single witness as true, you must convict. I convicted many people.

Once the decision to prosecute was made, it was my duty to select juries and present evidence provided by law enforcement officials in a manner that produced a guilty verdict. The system is designed so that I perform a devastating function with cunning vigor and proceeded with zero remorse or pity toward the trial’s end. I work with evidence and testimony. Shattered families, actual guilt, and sobbing wives are not part of the equation for a prosecutor. Those concerns are all silenced, that kind of evidence is suppressed.

I sent men off to serve 45-year sentences on the word of a single witness. Often that single witness was a young child or an intoxicated female or a convicted criminal.

I separated a man from his wife and children and job and sent him to jail on the word of his intoxicated friend who “witnessed” a dire moment in another man’s life. In another case, I moored my case entirely to the word of a convicted thief and prostitute who reported a rape after she was caught stealing a cab driver’s cell phone. In yet another case, I prosecuted a teenager for raping a young woman at a party twice. Yes, twice. All while she was discovered to have been sexting furiously.

My “star witnesses” were often less likable than my defendants. Crack addicts, victims with mental impairments and illnesses, chronic inebriates, people with other agendas and motive to lie. I often sold rickety facts as sturdy truths regardless. I cleaned those facts of doubt. I fought hard to keep out victims’ prior psychiatric histories, prior false reports of rape, their criminal convictions, and sometimes even other suspect evidence. Often judges agreed with my motions and suppressed the evidence that I knew would raise questions that would result in acquittal.

Unfortunately, I never knew the facts. How could I? I wasn’t there. After sorting through hours of inconsistent testimony, photographs, physical evidence that was collected and tested, evidence that was collected and not tested, witnesses who gave statements, and witnesses who were never interviewed, only questions were raised. I offer that if one were o look closely at any criminal matter, absent surveillance video capturing the incident with absolute clarity and a confession from the defendant, answers are never quite so clear. Questions are raised. How many questions are required to meet the burden of doubt that is reasonable? The answer to that question depends on the jury that you select.

At the conclusion of every criminal trial, the judge will read the law to the jury. In those instructions, the judge will inform jurors that “the government must prove every element of the crime charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence. Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.”

These instructions will vary ever so slightly depending on jurisdiction; each state has its own set of instructions. The ideas remain the same. The concept is clear. A defendant can’t prove his innocence. Proving a non-occurrence is a logical impossibility. For this reason, the burden of proof is always on the government. This does not change.

The standard to take one’s liberty is eroded by the trust people put into others in their own important affairs.

We trust that bridges won’t collapse as we drive across; that building construction is sound; that our vehicles are safe; and that people don’t lie absent a reason to lie. At the outset of every trial, jurors are expected to presume that the person seated in the defendant’s seat is innocent while prosecutors deliver blow after blow to the defendant’s innocence. Why is the defendant there if he didn’t do it? Jurors must be plagued by internal dialogues searching for everyone’s motive to lie—the defendant, of course, having the greatest motive of all.

The decision they make, regarding guilt, must be one without consideration of penalty or punishment—an impossible task for the average human. Ultimately, the Serial podcast raised many questions. What does it take to send someone to jail? How much evidence is enough evidence to convict? And, the most concerning question of all, what if I get accused of a crime that I didn’t commit, do I have to prove my innocence?

I guess the ultimate question rests with the uncomfortable soul-searching conclusion: Would you rather let a guilty man go free or an innocent man go to jail? The absence of certainty leaves room for error. The criminal justice system has plenty of room. Serial reached no conclusion. It did, however, put things in perspective.