My wife was watching TV news coverage of the terrible murders of four University of Idaho students.
There is plenty of it to see, if you visit Google.
She asked me about what an “expert” said to the show’s host – that police had not yet disclosed their “theory” of the case. My response was that she should ignore anything that “expert” said.
During my prosecutorial career, I learned that the surest way for police to make mistakes is to have a “theory” of the case. Once they have a “theory”, confirmation bias takes over. They become oblivious to any evidence which doesn’t support that “theory”, and they miss critical contrary evidence – or arrest the wrong person.
Cases aren’t built on a “theory” – they are based on evidence. You don’t formulate a theory and then find evidence to support it. You find the evidence that, first establishes a crime was committed, then who done it. I could give you multiple examples of innocent people being arrested based on a police “theory”, who we (prosecutors) subsequently cleared when the evidence was closely examined.
One such example I use as a teaching tool to illustrate how, after police developed their “theory” of who done it, they subsequently steered interviews of other witnesses to elicit evidence in support of that “theory” – then arrested two innocent men. Two of the witnesses interviewed turned out to be the actual murderers.
Review of the transcripts of those interviews shows a clear roadmap of police disregarding evidence contrary to their “theory”, and coercing those witnesses to corroborate the “theory”.
And our local media headlined the arrest of the wrong men. When we cleared them, the media dropped the story like it never happened. “Nothing to see here”… no doubt hoping the public forgets how wrong they were.
Which brings us to the other problem I have with the media coverage of these University of Idaho murders. Most, if not all of the time, the media haven’t got a clue what they’re babbling on about.
Broadcast “correspondents” are constantly demanding of police and prosecutors to release “details”; when will a suspect be identified; why hasn’t an arrest been made yet. After all, fictional TV show cops solve cases in an hour!
Having been the focus of such press interviews, most of the time it’s all I could do not to point out on air just how dumb those correspondents questions were. I watched an interview of the Moscow, Idaho prosecutor about this case. His most common answer was, “We don’t know” — which, under the circumstances is probably the most honest (if not best possible) answer.
So how did the media spin that? They wanted to know why he didn’t know! After all, they have deadlines to meet, and NEED ANSWERS, DAMMIT!
The basic difference between the media, and prosecutors, is that the former want answers fast, while the latter want the investigation done properly the first time.
Trust me on this, ignore whatever the media and their experts say. (I wrote about this subject before in this forum.)
I’ll reiterate: If you want to know what the evidence actually is, you have to hear it from the prosecutors – and their code of ethics severely restricts what they can publicly disclose. They discuss their evidence in front of the jury in court. Until then – nothing anyone else says really matters.
Only the prosecutors assigned to the case know what evidence can be used at trial. Even police don’t necessarily know that, because they may obtain evidence that won’t be admissible (can’t be used at trial). I’m not suggesting police aren’t doing their job – far from it. The role of police is to gather all possible evidence, regardless whether it can eventually be used in court. It’s the job of prosecutors to determine what of that evidence can, and should, be used at trial to convict the perpetrator.
Our criminal justice system, predicated on the principle that an accused is presumed innocent until the government proves otherwise, has developed complex rules to assure the evidence used to prove guilt is trustworthy. Those rules incorporate constitutional rights, and proven methods of testing the reliability of evidence.
Each state has its own rules of evidence, all of which have common elements. You can read the Colorado rules here, for example.
Because criminal prosecution requires the strictest adherence to evidence rules, prosecutors must have well-developed working knowledge of the intricacies and nuances of those rules. Just one provision of the evidence rules, Hearsay, encompasses multiple weeks of evidence class in law school to learn even the basics.
Police aren’t trained in those rules. That’s not their role. Theirs is to gather, and properly catalogue, all available evidence – even if it doesn’t support a ‘theory’. It’s the prosecutors who then determine if there is sufficient, admissible, evidence to secure a conviction before a jury.
But the media can’t seem to wait for the process to progress as it should. When it doesn’t move at their pace, or follow their narrative, they bring in ‘experts’ to question why not. Those experts will feed the narrative, because that’s how they get paid. Being right is not necessary.
And no guilty murderer has ever been convicted with a police “theory”!
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.