Understanding “Consciousness of Guilt”

July 13, 2012

Despite her acquittal, Casey Anthony may be the most hated woman in America.  Our skepticism of her story doesn’t stem from the lack of evidence, for there was clearly not enough evidence to convict.  The fact is that children die.  So why are some parents charged criminally, while others are not?  Why do we sympathize with some parents more than we do with others?

The answer is behavior – particularly the concept known as “consciousness of guilt.”

The basic concept is quoted from Jury Instructions cited from ALBERTY v. U S, 162 U.S. 499 (1896):

It is a principle of human nature-and every man is conscious of it, I apprehend-that, if he does an act which he is conscious is wrong, his conduct will be along a certain line. He will pursue a certain course not in harmony with the conduct of a man who is conscious that he has done an act which is innocent, right, and proper.  The truth is-and it is an old scriptural adage-‘that the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Men who are conscious of right have nothing to fear.  They do not hesitate to confront a jury of their country, because that jury will protect them. It will shield them, and the more light there is let in upon their case the better it is for them.  We’re all conscious of that condition, and it is therefore a proposition of the law that, when a man flees, the fact that he does so may be taken against him, provided he does not explain it away upon some other theory than that of his flight because of his guilt.

‘A man accused of crime hides himself, and then absconds. From this fact of absconding, we may infer the fact of guilt. This is a presumption of fact, or an argument of a fact from a fact.’

‘Flight by a defendant is always relevant evidence when offered by the prosecution, and that it is a silent admission by the defendant that he is unwilling or unable to face the case against him. It is in some sense, feeble or strong, as the case may be, a confession; and it comes in with the other incidents, the corpus delicti being proved, from which guilt may be cumulatively inferred.’

The charge to the Jury in Hickory v. U. S., 160 U.S. 408, 16 Sup. Ct. 327, was even stronger:

 … in which a charge . . . was held to be tantamount to saying to the jury that flight created a legal presumption of guilt, so strong and so conclusive that it was the duty of the jury to act on it as axiomatic truth.

The Supreme Court offered this wisdom in response to the human inclination to believe that flight, or other behavior, is evidence in and of itself that the person committed the crime.

While, undoubtedly, the flight of the accused is a circumstance proper to be laid before the jury, as having a tendency to prove his guilt, at the same time, as was observed in Ryan v. People, 79 N. Y. 593, ‘there are so many reasons for such conduct consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances.’

Although the courts typically require evidence beyond a reasonable doubt that directly connects the accused to a crime, known human behaviors are critical in the development of a case.   While consciousness of guilt is not enough to convict in a criminal trial, it provides important clues as to the credibility of witnesses, victims and the accused.

These behavioral attributes apply to individuals, corporations and governments.

For example, no one expects the National Aeronautics and Space Administration (NASA) to dedicate millions of dollars to discredit flat-earthers.  NASA does not dispatch its CEO or chief engineers to defend itself from them, nor does it pressure news agencies to spike stories and interviews of those who question the curvature of the Earth.  Credible agencies invite inquiry.  At the same time, individuals and agencies that assign millions of dollars to use pressure, intimidation and character assassination to defend their research, policies and procedures should be viewed with the same skepticism that Americans share for OJ Simpson and Casey Anthony – and for the same reasons.

Credits: PWC Consulting

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