08/19/2011 04:42 pm ET Updated Oct 19, 2011

The Case for Prosecuting Strauss-Kahn: Or Should Prosecutors Play God?

It's a classic courtroom battle -- David (Nafissatou Diallo), a poor immigrant chambermaid, against Goliath (Dominick Strauss-Kahn), a wealthy and powerful man, whom she accuses of a violent sexual attack. She has told her dramatic story of the encounter to virtually everyone -- on TV, at press conferences, in interviews. But there is one small group of people to whom she has not recounted the event but who matter the most -- a jury. Will it happen? Will New York District Attorney Cyrus Vance allow the case to proceed to trial and allow a jury to render a verdict? Or will he play God and decide the case himself? He makes his decision on Tuesday.

Apart from the dramatic confrontation, this case also illustrates a classic ethical dilemma for a prosecutor. If a prosecutor believes that the victim is telling the truth, but also believes that there are reasons for a jury to reject her testimony, should the prosecutor allow a jury to hear the victim's story, or should the prosecutor drop the case? To be sure, there would be no legal or ethical dilemma if the prosecutor did not believe the victim, even though the prosecutor believed that a jury might convict. That was the issue confronting North Carolina prosecutor Michael Nifong in the Duke Lacrosse case, and he chose to proceed with the case even though it was obvious that the alleged victim was lying. Should a prosecutor keep a case from a jury when the evidence is weak, even though the prosecutor believes the defendant is guilty?

The evidence that Strauss-Kahn committed a criminal act -- which has appeared so ambiguous and conflicting when aired in the media-saturated blogs and tabloids -- will probably be far more focused and incriminating if and when the proof is offered and assessed inside a courtroom. Consider, for example, the medical and scientific evidence to prove the attack. One of the arguments by Strauss-Kahn's lawyers has been that the evidence of a forcible encounter is inconclusive and proves only that there was some type of sexual encounter, but not an aggressive and non-consensual one. This claim, however, has so far been made based on sketchy medical reports. The medical and scientific witnesses who wrote these reports have yet to testify. But from what we know about the reports, their testimony may lend powerful support to Diallo's detailed description of the encounter. These witnesses will likely identify specific bruises and abrasions on Diallo's body, particularly in the vaginal area, and will likely say that in their opinion, these injuries are consistent with a violent sexual attack and inconsistent with a consensual encounter. Indeed, Strauss-Kahn's lawyers may have a difficult time refuting these opinions, particularly when the physical evidence appears to interlock with the victim's description. Moreover, the defense from the inception of this case apparently was forced to concede that there was a sexual encounter. This concession was based on the discovery of Strauss-Kahn's semen on Diallo's body and clothing. But the defense of consent may ring hollow with a jury. As the prosecutor will likely argue dramatically in his summation, "Why in the world would this woman consent to this man's ugly overture?"

The prosecutor will also introduce evidence from witnesses to whom Diallo cried out for help shortly after the encounter. This evidence is labeled "Prompt Outcry" proof and is admissible to prove that a forcible and unconsented sexual act in fact occurred. The theory for this rule is that if a victim complains immediately after a sexual event such as a rape, it is likely that the victim is telling the truth. If the act was consented to, so the theory goes, why would the victim make an immediate complaint? But more than the promptness of her complaint, however, will be the likely testimony from these witnesses as to Diallo's demeanor as she recounted the event. They may testify that she appeared shaken, crying, anguished, clearly not in control of her emotions. The prosecutor will ask the jury: "Was this an act? Is this a game? Why would she make this up?"

Then there are, at least from news reports, the several previous similar instances where Strauss-Kahn apparently took sexual advantage of younger woman, quite similar to the Diallo attack. If this evidence is indeed available to the prosecution, then introducing it may have a powerful impact on the jury. It will go a long way to negate the defense of consent, and certainly be confirmatory proof that Diallo is telling the truth. Undoubtedly this proof of prior similar acts is highly prejudicial, and trial judges monitor this evidence carefully to insure that it is offered for a proper purpose that outweighs its prejudice. The purpose here will likely be to show that Strauss-Kahn intended to have his way with Diallo, and that his conduct was part of a pattern of his longstanding aggressive sexual behavior with younger women.

And then there is the testimony of Diallo herself. Obviously she can make the case for guilt if her testimony convinces twelve jurors beyond a reasonable doubt. Will it? This, obviously, is the biggest imponderable of all, and this comes down to a judgment call by the District Attorney. The defense will attempt to discredit her testimony by showing that she made some inconsistent statements, that she fabricated a rape to gain entry into the U.S., and that she may have suggested that she wanted money from Strauss-Kahn. However, judging by her public appearances and statements, she appears to be a poised, articulate, and passionate woman who when sitting confidently on the witness stand -- finally getting her "Day in Court," so to speak -- may be capable of convincing a jury that what she claims to have happened to her really did happen. Her demeanor on the witness stand will be a key component to whether she is believed. Obviously her report to the police investigators after the encounter was so detailed, powerful, and convincing that they made the very risky decision -- and clearly a decision that could easily be second-guessed, as it was heavily second-guessed -- to arrest a distinguished and powerful official.

But proving guilt in the U.S. criminal justice system places a huge burden on the prosecutor. Some prosecutors cheat to get a jury to find guilt, as prosecutor Nifong tried to do, and some prosecutors take the easy way out and offer a favorable plea bargain. And some prosecutors decide to drop the case entirely. There will be no cheating here, and there seems to be virtually no chance of a plea that would be acceptable to Strauss-Kahn. So the question is whether Vance will drop the case. Should he play God and decide on his own that no jury will convict? Should he play God and decide that it would be unjust in light of the conflicting evidence and the possibility that Strauss-Kahn may be innocent and has been unjustly accused to allow a jury to find guilt? Or should he let this controversial case that has captivated the attention of the public here and abroad be presented to an impartial jury, in a public courtroom, in a fair and objective way, with all the procedural protections our system offers, and without the intervention of the media to influence the jury's decision, and then, as trial lawyers say, let the chips fall where they may. That sounds like justice.