There’s a National Geographic show called “Locked Up Abroad,” reenacting stories from people who got captured, arrested, or kidnapped overseas. It makes a pretty good drinking game to watch and try to identify the precise Stupid Decision that led to each victim’s imprisonment.
Most episodes involve someone who foolishly tried to “make a few bucks” selling drugs in a place where laws seem unreal or tenuous. By far the closest I’ve come to failing to identify the Stupid Decision was the first episode I saw, featuring a couple teaching high school in Chechnya. Kind and sympathetic, yes, but still an obviously Stupid Decision; within two weeks of their arrival a band of rebels (predictably) captured the couple and held them for ransom for over two years.
Discussing a crim law moot court today I realized that a similar inquiry shadows the American criminal justice system. When granting the presumption of innocence, prosecutors need as a two-pronged question: 1) Did this person actually commit this crime? and 2) What did this person do to get arrested or otherwise attract these allegations?
Many procedural protections help innocent people escape conviction based solely on the second part of that inquiry. But the fact remains that both sides of the debate have to ask who the defendant insulted, and how.
Sometimes the second prong becomes obvious, as when a prosecutor has to ask: Well if he wasn’t there burying bodies, why was he there? Other times that second prong stays subtle: If this witness didn’t name defendant because he’s guilty, why would witness finger him anyway?
It seems a little daft to approach situations asking yourself “Will this seem obviously stupid in hindsight,” rather than asking the more popular question, “What’s the right course of attack?” Which brings to mind that episode of The Office where painfully non-self-aware Dwight Shrute tells his boss that the best advice anyone’s ever given was “Don’t be stupid. Changed my life. Whenever I am about to do something, I stop and ask myself: Would a stupid person do this? If the answer is yes, I don’t do that thing.”
Abroad the question is (slightly) more nuanced, but in crim law it’s sometimes so obvious. Baiting an enemy to retribution, really? Trying some drug that renders people impervious to pain from being on fire? Really?
Would a stupid person do this? Is this so inelegant a question? There’s something to be said for pausing to take account of the circumstances. If, on assessment, something turns out to be stupid, DO NOT DO THAT THING!