Dershowitz On the Anthony Case: The Criminal Trial Is Not About Justice For The Victim


alan-dershowitzBy Alan Dershowitz

What is the function of a criminal trial? That profound question has been raised by the recent acquittal of Casey Anthony and the crumbling of the case against Dominique Strauss-Kahn.

“This case [is] about seeking justice for Caylee…” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that. A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a “whodunit” nor a “multiple choice test”. It is not even a criminal “investigation” to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt. Even if it is “likely” or “probable” that this defendant committed the murder, he must be acquitted, because neither “likely” nor “probable” satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result — acquittal in such a case — may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

For thousands of years, western society has insisted that it is better for ten guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham’s argument with God about the sinners of Sodom. Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were ten or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were ten righteous. From this compelling account, the legal standard has emerged.

That is why a criminal trial is not “a search for truth.” Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a mere preponderance of the evidence. In other words if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard. That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found OJ Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue to Casey Anthony civilly, a Florida jury might find liability.

Casey Anthony was not found “innocent” of her daughter’s murder, as many commentators seem to believe. She was found “not guilty.” And therein lies much of the misunderstanding about the Anthony verdict. This misunderstanding is exacerbated by the pervasiveness of tv shows about criminal cases. On television, and in the movies, crimes are always solved. Nothing is left uncertain. By the end, the viewer knows whodunit. In real life, on the other hand, many murders remain unsolved, and even some that are “solved” to the satisfaction of the police and prosecutors lack sufficient evidence to result in a conviction. The Scottish verdict “not proven” reflects this reality more accurately than its American counterpart “not guilty.”

Because many American murder cases, such as the Casey Anthony trial, are shown on television, they sometimes appear to the public as if they were reality television shows. There is great disappointment, therefore, when the result is a not guilty verdict. On the old Perry Mason show, the fictional defense lawyer would not only get his client acquitted but he would prove who actually committed the murder. Not so in real life.

The verdict in the Casey Anthony case reflected the lack of forensic evidence and heavy reliance on circumstantial inferences. There was no evidence of a cause of death, the time of death or the circumstances surrounding the actual death of this young girl. There was sufficient circumstantial evidence from which the jury could have inferred homicide. But a reasonable jury could also have rejected that conclusion, as this jury apparently did. There are hundreds of defendants now in prison, some even on death row, based on less persuasive evidence than was presented in this case.

Juries are not computers. They are composed of human beings who evaluate evidence differently. The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and in overtrying the case by introducing questionable evidence such as that relating to the “smell of death.” The defense also made mistakes, particularly by accusing Casey’s father of abusing her. That sounds like the kind of abuse excuse offered to justify a crime. But a criminal trial is not about who is the better lawyer. It is about the evidence and the evidence, in this case left a reasonable doubt in the mind of all of the jurors. The system worked in the Casey Anthony case.

It also seems to be working, if a bit late, in the Dominique Strauss-Kahn case, where the issue is not whether the defendant did or did not commit the crime, but whether the evidence is sufficient to warrant a criminal trial. Based on the accuser’s history of lying — even about alleged crime — the answer seems clear. That is why the charged will almost certainly be dismissed, following an earlier rush to judgment by the prosecutor, the media and the public. Would a dismissal be just or a truthful reflection of what actually happened? I don’t know. What I do know is that it would be the legally correct result.

{Huffington Post/ Newscenter}


  1. Usually I agree with alan, but this time he is making several key errors. One of his first lines is blatatantly wong, and the rest of his aticle is built on that mistake. He says “A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. ThatÂ’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.” But this is utter nonsense. Their is no justice for the victim by condemning an inocnet pperson of the crime. IF an innocent person is aquited, that is in fact part of justice fo the victim, it allows the police to seek out the tue perpetrator.
    Another mistake Alan and others are making is the oft repetaed sentiment that justice requires “guilty beyond a reasonable doubt” but this is hardly ideal, let me expalin. In a perfect world All guilty people would be found guilty and all innocent people would be found innocent. Sadly we dont live in a pefect world and mistakes are inevitable. Which way should the mistakes be skewed? As Alan correctly point out, as society we have decided “that it is better for ten guilty defendants to go free than for one innocent defendant to be wrongly convicted” But this is not the ideal, obviously it is merly the more acceptable mistake. When guilty people are aquited for what eve reason it is a failing in our legal system regardless of lack of evidence against them. Of course this is hard to quantify, since none of us actually know if she did it or not. However in a case like the OJ case (after which ALan wrote a simila article to the one above), a case which OJ subsequently addmited that he was guilty with his book “(If) I did it” It is an example of a failing of our legal system, pehaps a failure that is acceptable since it helps prevent innocents being falsely convicted, but it is a failure nonetheless

  2. All very good, but how did she get off the child-neglect charge, is it normal behavior to party for a month while your child is missing without telling a soul???

  3. Yankel, the Torah’s legal system is even more presumptive towards a defendant. Given that you need two eyewitnesses and a warning, almost all deliberate killers would fail to be convicted. Even a Noachide court requires at least one eyewitness (see Sanhedrin 57a, brought down in Rambam Hilchot Melachim 9:14) and the prosecutors in the Anthony case were trying to execute someone without an eyewitness.

  4. to #2 pardon my crassness, but there is no neglect if the child is dead. There’s is no child left to neglect.

    The scary part of this case to me has been the public hue and cry to create unreasonable laws in it’s wake. The most recent one I heard of was to make it a felony for parents to fail to report the death of a child. Can you imagine what horrible scenarios could ensue? Bereaved parents whose child has died as the end result of an illness or an accident are then subject to some inquiry because they failed to report. Absolute ridiculousness all because some people feel a personal vendetta against this one mother (mostly created by the media) and the lack of concrete evidence against her.

    May the good sense of lawmakers (if they have any) prevail.

  5. Yankel,
    I would’t call what Mr. Dershowitz is saying “utter nonsense” based on the argument you wrote.
    At the end, Justice is about the person who did the crime, not the victim. It could be I’m wrong, but your argument otherwise is unsubstantiated.
    The prosecution was looking to prove premeditated murder. They dropped the child abuse because the child’s dead.
    Forget about a eye wittiness, there is no proof the girl was murdered to begin with.

  6. I also beg to differ with Mr Dershowitz.

    1) The Torah says that “Your brothers blood cries out to me from the earth.” That sounds very much like there is a notion that justice is for the murdered. Also the notion of a Goel Hadam reflects the idea that the blood of the victim not be hefker.
    2) The Torah is not the source of the legal standards of the American System as anyone who knows the Torah’s requirements for witnesses and capital punishment know. If you are relying on Avrohom and Sedom ,then the Bible should also be the source for the opposite legal standard – to convict 9 innocent people together with the guilty . The story of Sedom was anyway not a judgement based on a court case with a human judge. The American legal standard is based on human morals and reasoning , not on the Bible.
    3) There was compelling evidence, testimony and logical reasoning that Caylee Anthony was a victim of homicide by her mother.
    In what logical scenario , does Caysee’s 3 year old daughter’s decomposed body end up in the woods down the block from the Anthony’s house as a result of an accidental death ? Is that what any normal loving mother does ?