Interesting discussion over at SJ about presuming that the government acts in good faith. And I certainly agree that there has to be a good faith presumption in favor of government conduct, just as there should be a presumption of regularity, and a presumption of paternity where the mother is married, and so on.
But the error Greenfield is making in his own analysis is also quite interesting. At least in the context of criminal prosecutions and defending against them, which is the SJ raison d’etre, the presumption that a criminal prosecution is brought in good faith is not ‘rebuttable’. It’s what we call conclusive.
How do you know? There’s no affirmative defense to a criminal prosecution that it is not brought in good faith. New York’s Criminal Procedure Law, for example, simply does not contemplate that a criminal prosecution could be brought in bad faith so does not address it until after there is a conviction (in Article 440).
If you find yourself on the receiving end of a criminal prosecution that is, in fact, not brought in good faith, you have to resort to what we call a “collateral” proceeding, or you have to wait until there is a conviction before you can challenge it. There’s no argument to make to the trial judge except for “due process”; but that’s another post, not this one.
Collateral proceedings are highly disfavored when they are addressing a criminal prosecution. There are very good reasons for that. Nevertheless, if a criminal prosecution is not brought in good faith it’s the only remedy there is.
Every criminal defense lawyer should know that.