Humans are why it is hard to prosecute criminals

One thing that  criminal law usually requires is intent to commit the crime shown by evidence “beyond a reasonable doubt.” That is a very high standard. It is a major reason why prosecutors often choose not to prosecute a case. A Washington Post article about radical right representative Matt Gaetz (R-FL) highlights this issue. The WaPo writes:

Career prosecutors have recommended against charging Rep. Matt Gaetz (R-Fla.) in a long-running sex-trafficking investigation — telling Justice Department superiors that a conviction is unlikely in part because of credibility questions with the two central witnesses, according to people familiar with the matter.

Senior department officials have not made a final decision on whether to charge Gaetz, but it is rare for such advice to be rejected, these people told The Washington Post, speaking on the condition of anonymity to discuss the deliberations. They added that it is always possible additional evidence emerges that could alter prosecutors’ understanding of the case.

A criminal defense lawyer commented that when a witness changes their story, their credibility is damaged or completely blown. That is usually enough for defense lawyers to create a “reasonable doubt” in the mind(s) at least one of twelve jurors. That is all it takes for a criminal to get away with crime.

In this case, credibility issues were probably not because the witness is a sex worker. Instead, she probably either (1) gave inconsistent interviews during the investigation, and/or (2) gave one version, was shown some evidence, and with a refreshed recollection gave another. Either way, that’s a defense attorney’s bread and butter. That’s the case right there. Defense lawyers love going to trial where no matter what the alleged victim says, there is at least one prior inconsistent statement. And, the fact that her second story would be consistent with the documentary evidence makes it worse, not better.

This is a common example of how ordinary and easy it is to erect plausible deniability in criminal cases. Matt Gaetz is probably not going to be prosecuted for crimes he probably committed.[1]

If you’re interested -- a personal anecdote about witnesses

About 35 years ago, I witnessed a bad car accident on my drive home from San Francisco one night. Two cars were racing, going at least about 100 mph, my guess in court was about 110 mph. After the two cars blew past me going 72 mph on cruise control, one lost control. That car swerved across 4 lanes from the fast lane into the slow lane and broadsided a car in the slow lane. Both vehicles were totaled. I was one of the cars that stopped to see if anyone was hurt. The guy in the slow lane was hurt, bleeding and panicking because he could not open his door, which was smashed in. A couple of us forced the door open and that calmed the guy down. No one in the wrecked race car was hurt. I witnessed the whole thing with amazement.

I waited for police and medics to arrive and take care of the hurt person. Then the cops asked for witnesses. People were eager to tell their story, but I sort of hung back and just listened. The accounts that each of three witnesses gave were not only quite different from each other, they were just wrong based on what I saw. I was amazed again.[2] If that personal experience is probative evidence, many or most human witnesses are amazingly unreliable. 

Footnotes: 
1. Despite being a high burden of proof that prosecutors must show to get a criminal conviction, the system does sometimes convict innocent people. From what I can tell, there is significant bias in wrongful criminal convictions. A 2018 research paper’s abstract summarizes the issue:

We examine the extent to which DNA exonerations can reveal whether wrongful conviction rates differ across races. We show that under a wide-range of assumptions regarding possible explicit or implicit racial biases in the DNA exoneration process (including no bias), our results suggest the wrongful conviction rate for rape is substantially and significantly higher among black convicts than white convicts. By contrast, we show that only if one believes that the DNA exoneration process very strongly favors innocent members of one race over the other could one conclude that there exist significant racial differences in wrongful conviction rates for murder.

2. For the rest of the story: I started to slink away, but one of the cops was watching me and he stopped me. I gave him my version of events. When the court case came up, I was the only witness called, so my version of the event was on display. The race car driver’s defense attorney was unhappy with my version, especially the amount of detail about the accident I was able to recall. For example, I knew my exact speed due to my cruise control. So, he impugned my credibility by asking if I was some sort of scientist, and when I said yes, he dropped that line of attack and tried another. 

He asked me for the details of what was on each side of the highway in the area of the accident, stuff like what kind of trees, what buildings were like, etc. I could not answer that very coherently even though I could picture it in my mind pretty well. And that is where he left it. I could not answer what was on the sides of a road I had been driving 4-5 times per week for several years. That undermined my credibility.