Why An Arrest is NOT a Proclamation of Guilt: A Primer on Due Process

{In response to some discussion on the Trayvon Martin case, I’m happy to welcome Tim Fall (who’s a a judge) back to the blog to talk about due process.}

I have the only job Jesus ever explicitly prohibited: “Judge not.” (Matthew 7:1, Luke 6:37.) Yet every day I put on a black robe (I call it my black muumuu) and sit on the bench judging.

It’s a living.

Of course, Jesus isn’t talking about judging as a profession, or exercising judgment in our day to day lives, but about judgmentalism, described by D.A. Carson as a “critical spirit, a condemning attitude.”

You’ve seen it; you know what it is–if you’re like me, you’ve done it.

It comes up a lot when a particularly heinous crime is committed, or someone famous gets
arrested. Everyone has an opinion, and the internet lets everyone else know what it is. For a lot of people, an arrest is as good as a conviction. After all, people think: ‘where there’s smoke, there’s fire–no one gets arrested unless they did something wrong!’

If this were true, we could set up a really efficient system: a police officer arrests someone and drives them to prison, tells the warden the person is guilty of a crime and the warden then just locks them up. See what I mean? No need for courtrooms, no need for judges, no one gets a lawyer, no one ever gets called for jury duty. Efficient!

Efficient, and unjust.

Soon after I became a judge in the mid-90s, a young man appeared in court wearing a jail jumpsuit, and upon hearing the charges blurted out, “That wasn’t me, it’s my brother! He did it to me again!” It turned out his brother had done it to him again. The poor guy’s brother made a habit of committing crimes and giving the police a false name, which led to this guy’s arrest because you know what name the miscreant always gave? The name of the poor guy standing in front of me in the jail jumpsuit. Fortunately for him, the court-appointed attorney got it straightened out quickly and the poor guy was set free. The brother? He was eventually picked up, as always.

Our Constitution provides everyone with the right to due process; for an arrest, that
merely means that the police only need “probable cause.” It’s a fairly low standard; if the
police have a valid reason to think a particular person committed a crime, they can arrest that person for it.

In my state, if it’s a felony, we hold a preliminary examination where the prosecutor needs
to present sufficient evidence to support a strong suspicion that the crime occurred and that this person is the one who committed it; this is a higher level of proof than needed for an arrest, but lower than for conviction. The case gets dismissed if there’s not enough evidence.

At trial, the prosecutor has to put on enough evidence to prove the case beyond a reasonable
doubt. If there is enough evidence, the jury returns a guilty verdict. If not, then not guilty. I’ve had both types of verdicts in my courtroom, and it’s not a bad system, especially when you consider that there are places in this world where nothing even remotely resembling due process exists.

In some countries, that model of unjust efficiency I set out above is the norm – the government just arrests people, puts them in prison, and keeps them there. So why do people in our society not cherish our Constitutional rights of due process?

Why do people rush to judgment and call out for justice before anyone has examined the evidence, before the accused person is even given a chance to be heard?

I think people don’t trust the system to work because they don’t know how it works. And if they aren’t familiar with the system then they don’t know that it does work. But what about those times people do get away with committing crimes, hurting others, ruining lives? This might be the deeper issue. We know that sometimes people literally get away with murder. How can we trust a system that does not bring every single criminal to justice?

If that’s what you want from a criminal justice system, you’ll be disappointed.

That perfect system doesn’t exist in any government here on earth. We have some that work fairly well considering that everyone involved is a fallible human being. But no system is perfect.

The good news, though, is that there is one infallible and perfect judge, “the Judge of all the
earth” as Abraham put it. (Genesis 18:25), and I find that when I am tempted to condemn or rush to judgment, trusting God tends to put a damper on the desire to be judgmental.

Rushing to judgment is dangerous. I’d rather rush to the Judge.

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20 thoughts on “Why An Arrest is NOT a Proclamation of Guilt: A Primer on Due Process

  1. Rachel, thanks so much for giving me another opportunity to write for EwJ. You have a great blog going here, and I just hope my article today doesn’t drive down the property values too much!


  2. Great post Tim. Very insightful.
    I jumped over from Anne’s when I read your comment there. Thank you for introducing me to this blog — it looks like a treasure!

    • Thanks for followiong me over from our very modernmrsdarcy, Adriana, and thanks too for your encouraging comment. You’re right, Rachel’s blog is a treasure trove!


  3. Great article again, Tim. I think all the glorified versions and court dramas on television give us some false ideas about how the system works as well. Thank you for simplifying it so well and pointing us to the judge who actually suffered our penalty and provided our righteousness!

    • Thanks Aimee.

      Real court stuff really is quite different from what is portrayed on TV. Sometimes during trial when the attorney calls the next witness and we wait for the bailiff to retrieve the person from the hallway it can take a while. I tell the jury that on the TV courtroom shows this is when they cut to a commercial.

      The other thing about TV judges: they are free from the ethical restraints real judges are under. That yelling and belittling you see? That’s a quick way to get hauled before California’s Commission on Judicial Performance. Patience, not ratings, are what we strive for.


  4. Ooooh…great last line, Tim! I love it! And you are so right about our societal’s collective rush to judgment in sensational cases. I’ve been armchair judge and jury too many times in such cases…and often come out on the wrong side. Now I try to turn my judgmental attitude off until the truth all comes out. Lately, I’ve been following the Isabel Celis case, mainly because she is near the same age as my kids, and it just breaks my heart. I can’t NOT follow it, b/c I keep checking in to hear if they’ve found her. Anyway, due to recent events, the commenters have all turned on the dad. And I have to admit…it does kind of look bad for him. But…I refuse to rush to judgment this time. I just keep praying for the girl and waiting for the facts.

    Thanks for another thoughtful article.

    • Thanks for coming over to read it, Kim.

      A while ago the Today show had some jurors from some big trial that had just finished and the interviewer asked the foreperson what he thought about all the criticism of their verdict. He said there are two ways to arrive at a decision in a trial. One way is to be in court every day, listen to every bit of evidence, follow the judge’s instructions and deliberate with the 11 other jurors. The other way is to sit at home and watch it on TV.

      And I am so glad that God is able to see it all, and that he is not judging on the basis of incomplete evidence. I am also glad for his mercy despite the evidence against me!


  5. Great reminder and a timely post. @Tim, I agree, I am so thankful that God looks at the bigger picture and doesn’t judge us by incomplete evidence.

    Understanding God’s perspective during these times is so important, thank you for taking the time to blog about this.

    • Thank you for your encouragement, SoG. When it comes to thankfulness for God’s perspective, I am reminded that I may not know all that God knows but I do know that God knows all!

  6. I think it’s a much scarier idea that any one of us could be prosecuted based on shady evidence than to know that some “bad guys” might get away…Good point, Tim.

    • Good point, Nick. The old adage about letting the guilty go free rather than convict the innocent is rooted in a basic sense of fairness, I think.

  7. What a VERY hard job you have. May God bless you and help you bring justice and may He help guide you to the truth to freeing those oppressed.

    That is terrible about that guy’s brother getting him in trouble all the time.

    • re: the guy’s brother – I bet family reunions might get a bit testy!

      And thanks for the envouragement, Victoria. The job’s not a cakewalk, but I seem to be suited for it. God’s grace and sovereignty and all that.


  8. Pingback: How to Smartly Engage with the Young Doubters in Your Midst | Believers Radio

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  10. Pingback: Rush to Judgment | Tim's Blog – Just One Train Wreck After Another

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