Standards Of Credibility

by Patrick Appel

It's hard to beat Thoreau's take on the DSK case:

In general, I agree that prosecutors should refuse to go to court with a criminal case if the case hinges on testimony from a person who cannot be trusted.  This is, in general, a sound civil libertarian stance.  However, one need only read Radley Balko’s blog, or the ACLU’s blog, or any number of reports on death penalty cases with shaky evidence, to recognize that this standard of credibility should not only be applied to victims of alleged sexual assaults.  It should also be applied to informants (especially in death penalty cases), cops who can’t keep their stories straight, and “expertwitnesses offering testimony that is dubious at best.

This is what so annoyed me about BHL's latest on DSK. Were DSK of a lower economic and social class, he'd likely still be behind bars. Given what we know about the DSK witness, I agree that the case should be dismissed, but, besides the senseless perp walk, DSK has had it much easier than most suspected rapists. Along the same lines, a reader writes:

I don't think the DSK case vindicated anything. As the OJ case proved, our legal system is quite capable of providing protection to rich people with teams of high paid lawyers and expert witnesses. I represent indigent defendants appealing their convictions in California.  Needless to say, none of them had even a second lawyer, let alone a PR team and Roman Polanski's friend Bernard-Henry.  And California is miles ahead of Texas or Alabama.

I think the DSK case is an outlier, that other than in white collar criminal cases, there's nothing like the scrutiny we see here.  It was once said (and is probably repeated in Law Day speeches), that rather a hundred guilty go free than one innocent man convicted.  In 21st century America, the contrary is true.  Judges don't want to risk freeing a guilty man, and would rather err on the side of conviction.