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Defending a Criminal Case

The role of the defense attorney in a criminal case is to identify weaknesses in the prosecution's case and convince the jury that these raise a reasonable doubt about the defendant's guilt. This strategy is most successful in complex crimes that require proof of a guilty mind (the defendant intended to commit the crime). Most of the crimes discussed in this book are sins of omission, such as failure to report a communicable disease. The physician's intent does not matter; if it can be established that the report was not filed, a guilty verdict will follow. The only instances where we will deal with the issue of a guilty mind involve withdrawal of life support. In these cases, the state may raise the issue of whether the physician intended to commit active euthanasia.

The state has considerable discretion in deciding whether to prosecute a criminal case. This is not the discretion to decide that a given criminal will not be punished but the discretion not to file a case that the state does not believe it can prove. The victim of a crime may be able to pressure the state to prosecute through political means, such as media exposure, but it is not the victim's legal right to demand prosecution. Victims generate great sympathy, but the criminal act is against the state, not the victim. The victim's personal remedy is to file a tort claim in the civil courts. Unlike the criminal justice system, the civil courts may deny a person access only if the court finds that the person's lawsuit has no legal basis.


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