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We are well past the time for our courts to reconsider whether the consciousness-of-guilt charge makes sense. Our common law evolves over time. Let’s shed this Victorian relic once and for all. Those practicing in the criminal courts know the charge well. Judges tell juries all the time that a false statement by a person accused of a crime may be regarded as consciousness of guilt. Unfortunately, our courts give the instruction at the drop of the hat, but then refuse to instruct on other reasons a person may give an untrue statement: confusion, fear, or misunderstanding. Criminal defense lawyers joke about the heinous crime exception to the Bill of Rights. Our Appellate Courts take the joke seriously, and permit the harmless-error doctrine to swallow whole almost any injustice. This antediluvian doctrine regarding guilt is nothing more than judge-sanctioned speculation. A new book by Peter Brooks, a professor of humanities at Yale, called “Troubling Confessions” (University of Chicago, 2000), makes a strong case that guilt is a much misunderstood phenomenon. Drawing from psychoanalytic literature about transference, and the relationship between a confessor and a confessant in the Roman Catholic tradition, Professor Brooks presents a hypothesis at once radical and obvious: Guilt is ubiquitous, and its mere presence unreliable. Brooks draws freely from Supreme Court opinions on voluntariness, and discusses the phenomenon of guilt as expressed by writers such as Dostoevsky and Camus. A brief tour of the Inquisition’s understanding of guilt rounds out a balanced discussion of a mental state that we understood poorly, if at all: the guilty conscious. I confess that for several decades I have had little or no comprehension of Christian doctrine and dogma, except for the concept of original sin. There is something flawed about our world and our place in it. We are all too often strangers even to ourselves. Innocent men often confess out of misplaced and misdirected fear. A suspect often says things that are incoherent. We need look no further for the genesis of pathology arising from misplaced guilt than our reaction to being stopped by a traffic officer. In that moment, we are all suspects of each and every furtive and malignant act we wish we had the courage to commit. I called Brooks not long ago to discuss the statements of a man in a criminal case. I suspect the state will offer the statements of consciousness of guilt. After reading the transcript, I asked the professor what he thought. He had no idea what the statements meant, and whether they were indicative of anything. I then told the professor that the state would offer them as consciousness of guilt. The professor, who is affiliated with the Yale Law School, was stunned and incredulous that there could be such a thing. I suspect another book is brewing in New Haven. Our Supreme Court showed courage not long ago when it sliced away the Victorian moorings of the constancy-of-accusation doctrine in sexual assault cases. Recognizing the misplaced assumptions of another age, the court trimmed the admissibility of statements made after a rape. It is time for a similar analysis of the consciousness-of-guilt doctrine. We understand far less about ourselves than a confident Victorian sensibility imagined. The Age of Reason is over, and so is our mourning for lost images of perfection. Sober realism requires that we face squarely the riddle that is the self, and that we stop telling juries that the assumptions of the 19th century are in any way probative today. Norm Pattis is a name partner at New Haven, Conn.’s Williams and Pattis.

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