Ladies and gentleman of the jury, this defendant is guilty.  He knows he’s guilty as he sits there today, and he knew he was guilty on the day of the crime.  You know how we know he’s guilty?  He fled the scene of the crime and hid for days.  Are those the actions of an innocent man?  Innocent men don’t need to hide.  He ran because he knew he was guilty.

I love a rhetorical question.  Luckily for me everybody in the world says to use them in closing arguments.  I use them, also.  The cool thing about getting to follow the government’s lawyers, though, is that I get to answer them, too.

This idea that an innocent person shouldn’t run and hide is one that gets rhetorically asked in closings all the time:  Why did he run if he knows he’s not guilty?  Why did he refuse to do the breath test on the DUI if he knows he’s not guilty?  Why would anybody evade the police if the knew they weren’t guilty?  If he’s got nothing illegal in the car, he should have let the police search, right?

They wouldn’t.

Or maybe they would.  Regardless of what the government lawyers want juries to think, nobody has more incentive to flee the scene of an accident, hide, or refuse breath testing than an innocent person.  Nobody.

I know you’re not buying it.  It’s true.

Other than, perhaps, people that don’t really understand the system, the only people who can’t understand why an innocent man wouldn’t cooperate are the people running the system- the cops and prosecutors.  Or, put another way, the only people who don’t get why innocent people don’t cooperate with cops and prosecutors are cops and prosecutors.

Crazy how that works.

Why might that be (asked rhetorically, of course)?  It’s hard to see your own mistakes.  It’s even harder to admit you make mistakes if those mistakes mean you prosecute innocent people.  If you believe I’m a scumbag because I represent people I “know” are guilty, then you should also understand that cops and prosecutors have gone after innocent people, and that’s worse.

But, if you don’t open yourself up to the idea that you might convict an innocent man, it’s a lot easier to be a cop.   And, you can’t even begin to think like that unless you’ve convinced yourself that you don’t/won’t ever make serious mistakes.  So, if you’re not making mistakes, the system is working fine every time, right?

Wrong.  The system has some pretty serious flaws.  Even if we pretend that innocent people never confess, the police have been known to say that something is a confession even when it isn’t.  Sometimes the police are wrong.  Sometimes people are wrongly identified by eye witnesses in lineups.  Sometimes breath test machines are wrong.  Some times crime labs are contaminated.  If you are not guilty, any one of those issues are going to be catastrophic to your freedom.

But, what if you’re guilty?  If you’re guilty you’re going to jail.  Unless, of course, the cops or prosecutor make a mistake.  In that case, you’re going to walk.

So, you tell me who really has the incentive to not cooperate.  The guy who is headed to jail but might catch a lucky break and walk?  Or, the guy the cops shouldn’t even be harassing, but might just end up going to prison for some stuff he didn’t do?  What prosecutors should say in their closing arguments is that this dude ran because he was scared as hell. He didn’t commit that crime, but every cop on the planet says he did.  Why wouldn’t an innocent man run?

And, that doesn’t even get into all of the real technical, nuts-and-bolts of the law type stuff.  If you really killed a dude in self defense, you shouldn’t fear talking to the cops, right?  Exactly. Unless you believe (as you should) that self defense law is extremely complicated (there is a subjective part and an objective part…) and your average Barney Fife might not quite understand it well enough to figure out if he should arrest you or not.

Oh and, by the way, self defense is an affirmative defense- meaning that by even telling the cops you acted in self defense, you admit to the crime and give him all the probable cause he needs to arrest you.  Why should he even sort through your complicated legal defense when you’ve given him enough to arrest you?  He’s just going to arrest you and let the courts deal with the complicated stuff.  He gets paid the same either way.

Look, I’m not saying that you should run from the cops. I’m not saying you should hide.  What I am saying, is that prosecutors should stop asking that rhetorical question.  The only way that argument makes sense is if you believe the system doesn’t make serious mistakes.  You shouldn’t believe that. Neither should cops or prosecutors.

Matt Haiduk is a Criminal Defense Lawyer with a bad attitude and offices in Kane County and McHenry County, Illinois.