RAP sheets as Prejudicial in Criminal Defense

A RAP sheet examined mindlessly is Prejudicial against the accused. There is no doubt the above statement is controversial because it should not be.  A persons RAP sheet is their arrest and conviction record.  The RAP Sheet informs the government of how many times the person has been arrested and whether or not they have been convicted of a crime.  A person can have a conviction in two ways: (1) through a plea agreement or (2) a trial by jury.  Ideally, there should be no prejudice associated with this document because it is a list of facts.

However, a list of “facts” in the abstract may lure a prosecutor into a state of intellectual dishonesty leading prejudice against a criminal defendant.

I am not arguing all persons charged of crimes or sitting in jail are innocent, though some are.  I am proposing there should be a policy of mindful analysis criminal history that does not include arrests. A person is arrested law enforcement when the officer at the time of arrest believes a criminal act was committed based on probable cause.  Probable cause arises when facts and evidence lead that officer to believe this individual committed the crime.

Statue of justice

The arrest may come within hours or even minutes of first engaging law enforcement.  The officer must address the facts as they see them in real time and sometimes those real time facts are fiction upon closer examination.  This is not the fault of the officer who must make a determination in the field in real time but just reality.  Things not always being what they seem also applies in criminal defense.

The RAP sheet does not say whether the facts behind the arrest were fact or fiction.  It simply creates the inference that at the time of that incident an officer arrested that person based on probable cause.  Where does that lead?  The person is presumed guilty without ever having been found guilty simply based on the arrest.

But what if that case was never brought?  What if it was dismissed?

It does not matter.  The fact of the arrest is still on the RAP may prejudice any plea agreements in the future unless the government has a policy of only using convictions to generate their plea offers.

The presumption of innocence can be illusive for any prosecutor because they are confronted by fact patterns and scenarios where there is overwhelming evidence of guilt.  The burden of proof is squarely on their shoulders. But, when negotiating a plea an arrest should be consciously factored out of the equation. A prosecutor that understands beyond a reasonable doubt should know that if they could not meet the burden then the person is not guilty.

Unfortunately arrests that did not result in conviction are often factored into the calculus when offering a pre-trial disposition and are always to the detriment of a criminal defendant.  A case that got dismissed because it was fabricated, uncorroborated or mis-filed as a felony rather than a misdemeanor will still forever stain any subsequent proceeding simply based on the arrest.

A prosecutor mindlessly reading a RAP sheet may subconsciously or consciously assume guilt based on arrests rather than convictions.  Those marginalized groups that live in high crime areas because rent is affordable run a higher risk of arrest than a person in an affluent less patrolled area.  So what happens?  A person may be arrested, not charged, yet still carry the stain of the arrest forever simply because of their socio-economic status.

It is intellectually dishonest for a prosecutor to consider arrests not resulting in conviction when assessing a RAP sheet for the purpose of a plea or offer. A person’s criminal history should be considered but possible crimes and actual crimes must be distinguished. The arrested never had the opportunity to contest the evidence against them or even defend themselves against the charges.  It is dishonest to know what a criminal defendants rights are and still use an arrest against them knowing that an arrest is not by itself guilt.

The inference becomes that the charged person got away with one in the past so now must pay for their criminality.  Judgement without facts is straight prejudice and should have no place in plea negotiations.  This is why using arrest information from a RAP sheet rather than only using convictions is improper and denies a criminal defendant their Constitutional presumption of innocence.

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