Bolan v. United States

¶1concurring:

¶2Everybody knows that if Bolán had been a District of Columbia employee with authority to try to take money from a parking meter,1 he would assuredly have mentioned this to the police, and there would have been no prosecution. I am therefore of the opinion that, in the absence of any evidence to the contrary, a reasonable jury could conclude beyond a reasonable doubt that Bolán broke into the device without authority to do so. In fact, a juror with the slightest familiarity with human nature could hardly reach any other conclusion. “[Cjircumstantial evidence may be more certain, satisfying and persuasive than direct evidence.” Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C.1989).

¶3I believe that neither the presumption of innocence nor the privilege against self-incrimination would be in imminent (or even remote) peril if we allowed the jury to employ its common sense in this way to reach the only just result. Contrary notions based on “Adversary System iiber Alies” do not persuade me and would not, I suspect, persuade the significant number of judges and lawyers, and the overwhelming majority of lay people, who believe that perfect theoretical symmetry must occasionally be sacrificed in favor of what Justice Frankfurter has called “the saving grace of common sense.” Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955); see also P. Vinogradoff, Common Sense In Law 9 (1913) (“Although the details of legal rules are complicated and technical, the operations of the mind in *461the domain of law are based on common sense ...”).

¶4Nevertheless, we are bound by Craig v. United States, 490 A.2d 1173, 1178 (D.C.1985), in which this court held exactly what our per curiam opinion in this case says it held. To me, that kind of decision tends to foster the perception that some rules of law are insufficiently grounded in reality to achieve the ends of justice, and that they have more to do with preserving the integrity of arcane theorems incomprehensible to the public than with dispensing justice on the merits. This cannot be good either for our judicial branch or for our citizens. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).

¶5Nevertheless, the government has not asked us to reconsider Craig. That, I am afraid, is that. Accordingly, I join the opinion of the court.2