Kavanaugh won’t be charged: Stark differences between criminal cases and confirmation hearings

Christine Blasey Ford has accused Brett Kavanaugh of serious crimes. Let me start off by saying that if these accusations are true, then Kavanaugh should not be a Supreme Court Justice or a judge of any kind. The Senate proposes to have hearings next week in order to consider whether these allegations are true. As these hearings proceed, though, it is important to remember that they are not to determine whether Kavanaugh will be charged criminally. Multiple factors preclude a criminal prosecution here:

The lack of corroboration.  It goes without saying that a criminal charge of attempted rape or sexual assault will ruin a person’s life. For this reason, most prosecutors rightfully do not bring these sorts of cases without some sort of corroboration. For example, in the Bill Cosby prosecution, there was corroboration, from Cosby’s own statements to the physical evidence to the sheer number of women who made the same claims. As of this writing, we are not aware of any corroborating evidence to support Ford’s claims. There is no physical evidence. There is no admission to any portion of Ford’s claims by Kavanaugh. There are no similar claims by other women. There is no contemporaneous complaint. Without such corroboration, it is hard to imagine that a prosecutor would bring this case. 

The claims are very old.  Most states have statutes of limitations for attempted rape and sexual assault. This means that prosecutors can’t prosecute for these crimes after a certain amount of time has elapsed. There are important reasons to have these limitations on prosecutions. For starters, evidence — including memory — gets stale after time. In this case, more than 30 years have passed since the alleged act took place. Therefore, Kavanaugh could not be prosecuted in many states. Maryland, the state where the alleged attack took place, does not have a limitations period for any felony sexual offense. As a practical matter though, the passage of this much time would make such a prosecution almost impossible. {mosads}

The standard of proof.  If a criminal case were brought against Kavanaugh, a prosecutor would have to prove the case beyond a reasonable doubt. This is an extremely high standard. It means that even if jurors believed Ford was probably telling the truth or even was likely telling the truth, they would have to find Kavanaugh not guilty if they had a reasonable doubt. This is the right result because our country was founded on the idea that we would rather ten guilty offenders go free than one innocent person be wrongly convicted of a heinous crime. This, of course, is not the standard we have for confirmation of Supreme Court Justices.

Ford would need to testify under oath, as would other potential witnesses.  There is some question about whether Ford will testify at the Senate hearing next week. In a hypothetical criminal case against Kavanaugh, there is no question that Ford would need to testify under oath. Without such testimony, the case would quickly be dismissed. In order to determine whether the attack occurred, a jury would need to evaluate Ford’s credibility as well as any other relevant evidence. So far, all we have is a letter written by Ford. It goes without saying that such a letter would not be sufficient in a criminal prosecution. As for the other witnesses who all have said that they will not be speaking on the matter, in a criminal case, they would be subpoenaed to testify before a grand jury or at a trial if they had relevant information. They could not simply choose to stay silent unless they were somehow involved criminally and invoked their 5th Amendment right to silence.

The accused would not need to testify at all.  It is no surprise that as part of the confirmation process, Kavanaugh will be subject to questioning about these allegations. But in a criminal case, Kavanaugh would not be required to testify at all. This might strike people as odd. But our Constitution protects the accused from having to testify or present any evidence at all, for many good and important reasons. Our criminal justice system requires prosecutors to prove cases, not for defendants to disprove them, before being able to take away a person’s liberty. Again, this is not the same consideration for approval of a lifetime Justice. 

The review of Ford’s background and other favorable material.  In a criminal case, the prosecutor would be required to disclose to the defense all evidence that could be used to discredit Ford, including: inconsistent statements, memory issues, and any other issues concerning her background that might exist. Although Republicans in favor of Kavanaugh will certainly be doing all they can to discredit Ford, Democrats against him are under no obligation to turn over harmful material if they have it.

The presumption of innocence.  The most important protection a criminal defendant has is the presumption of innocence.  That means that until the jury hears actual evidence and proof beyond a reasonable doubt, they are requiredto presume that the defendant is actually innocent.  Speculation is not permitted.  No such presumption exists in politics or in the media — mainstream or social.  

Although Kavanaugh will not be criminally prosecuted or convicted, it remains to be seen how next week’s confirmation hearing for a lifetime Supreme Court appointment will play out. In the exact opposite situation of a criminal case, it appears that all we may have to consider is Kavanaugh’s testimony itself.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He previously worked at Williams & Connolly in Washington, D.C. and as an Assistant Federal Public Defender in Miami. He graduated magna cum laude from Harvard Law School. Follow him on Twitter @domarkus.