The Law Offices of Marnie M. Slavin P.C.

Long Run Fairness?

By Ari Mathew • June 5, 2011 • Filed in: Criminal Law Ranting

Written by Ari Mathew, an attorney not affiliated with The Law Offices of Marnie Slavin.

A purely moral exercise. Not intended as legal advice:

Let’s say over a ten year period you are given six speeding tickets. For two of those tickets you were speeding; you are certain of it. Two of those tickets you are not sure; let’s say there is a 50/50 chance the officer made a mistake. Two of those tickets you know the officer made a mistake.  From a purely moral point of view, how many of these tickets should you fight?


What do you know?  You are not a police officer. Maybe you should pay the fines, take your lumps, and let the officer do his job?


Maybe you should only fight when you know you are correct. You could assume the officer knows better than you on the instances when you were only 50/50. Also for the two instances that you know you are guilty it would be wrong to fight; after all, the law is there for our protection, right?


You could fight one of the 50/50 cases because you were probably guilty one out of two times. You will also fight the two where you know you were not speeding.


If there is any doubt, fight. Make the officer prove his case. It is the prosecution’s burden to prove you are guilty so they should prove it.

Wrong. Wrong. Wrong. And Wrong. Of course this is just my opinion but I would fight all six. First, I would never just assume the officer knows better. He or she is a human being just like the rest of us, prone to errors; however, I have never seen an officer march in to court and say to a judge “There were two cars next to each other and only one was speeding; I am pretty sure I got the right car.”  I do not think anyone has; instead they talk about their impeccable training years of experience and certainty that the person they pulled over is guilty.

A simple equation should clear this up. If we are guilty twice, 50/50 twice and not guilty twice then how many convictions do we deserve?  The answer is three: [2(1) + 2(.5) +2(0)=3; the equation for the mathematically inclined. Since in every case, I am up against the word of a trained officer of the law I will assume I have a 15% chance of winning each case. In reality, I imagine, it is much less.  Thus, even if I fight every case I am likely to end up with 5 convictions. If I fight four cases I will end up with 6 convictions almost half the time.  If I fight only two or three cases, I will end up with 6 convictions most of the time. Remember I only deserve three.

Of course anything could happen on a particular case but under the law of averages there is some probability of a conviction when we are innocent and acquittals when we are guilty.  In the long run, if we only fight when we are innocent, we will end up paying a higher price than we deserve.

I recently spoke with a prosecutor and asked him to dismiss a case. Based on the facts he had virtually no case; however, he had the testimony of the officer, which in a traffic case is extremely difficult to overcome. The prosecutor told me he never proceeds if he does not have a case. As I thanked him for his consideration he slipped in that he will proceed with any semblance of a case. If a prosecutor, whose duty it is to be just and fair, will proceed with a mere semblance of a case, how can we ever expect justice on averages or ever?

In Part 1: Legally Blonde I tried to explain how we may be legally guilty even if we are not morally guilty. In Part 2: Good Parenting I tried to explain how our desire to do the right thing stack the deck against us when it comes to criminal law. In Part 3: The Law of Averages I tried to explain how fighting every time, guilty or innocent, still may not be enough. I hope this answers at least some of the questions as to why I will defend someone who is guilty.



I still wouldn’t defend someone if I knew they were guilty

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