Vincent Bugliosi on The Defendant’s Consciousness of Innocence

And the Sea Will Tell is loaded with the author’s observations on the mechanics of America’s criminal justice system. Here is Vincent Bugliosi’s unconventional idea that while the prosecution is on alert for the a consciousness of guilt on the part of the accused, a consciousness of innocence is a legitimate and underutilized defense tactic:

Books on criminal evidence have sections called “consciousness of guilt,” wherein all types of conduct and statements of an accused–flight, resistance to arrest, escape, destruction of ecidence, silence in the face of an accusation, false or conflicting statements, ect.–have been held by courts to be admissible circumstatial evidence showing a consciousness of guilt. In addition to these conventional indications of guilt, as a prosecutor I had a passion for taking even unconventional and obscure specks of evidence and developing them into an argument showing consciousness of guilt on the part of the defendant.

Now, as a defense attorney, I find it very natural to argue the opposite side of the coin; consciousness of innocence, also illustrated by the conduct and statements of the accused. Strangely, however, the same books that have entire sections on consciousness of guilt never even mention consciousness of innocence. It’s as if the pivotal mechanisms of the criminal justive system have been established to prove guilt, not innocence, perhaps the residual progeny of the notorious common-law rule (abolished by statute in England in 1701) that in cases of felony, the accused was not even allowed to introduce witnesses in his defense. It should be noted that the very term “circumstantial evidence” has come to mean circumstantial eveidence of guilt. But there obviously can be circumstantial evidence of evidence, too.

*Cases are legion in which certain acts and statements of an accused are deemed admissable circumstantial evidence to show guilt, while the opposite of such acts or statements are not admissible to show innocence; e.g., although the prosecution can introduce evidence of escape or attempted escape, the defense generally cannot introduce evidence that the defendant had an opportunity to escape but did not. And while a defendant;s incriminating statement comes in under an exception to the hearsay rule, adefendant’s exculpatory statement is inadmissible, since the law virtually presumes a self-serving motivation for the latter. Similarly, a suspect’s silence in response to being accused of committing a crime is admissible as showing a consciousness of guilt. But if he is not silent, and denies the accusation, the denial is not admissible.

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