The presumption of guilt

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. The presumption has been traced by some to Deuteronomy and there is evidence that it was embodied in the laws of Athens and Sparta. “Better than 10 guilty persons escape than that one innocent suffer“, says Blackstone [see here for a summary of the history of the presumption].

It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. I’ve often employed Emperor Julian’s response, reproduced above, in answering the cocktail party question.

It’s all a lie. A big, bold-faced, wool over your eyes lie.

The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.

From the absurdly low standard of probable cause needed to arrest a citizen, to the pitifully slanted pre-trial proceedings, to the trial itself, the presumption weighs heavily against all those who have been charged with a crime.

22tweets, a creation of Lance Godard, asked those who were featured in last week’s Blawg Review one question on twitter. Mine was: “What would you say is the most difficult aspect of being a public defender?”*

As I pondered that past the deadline for a response, I cycled through the regular ills of a pd system: a lack of funding, crushing caseloads. But that’s not difficult. It’s a burden, to be sure, and an impediment, but one that can be overcome.

The most difficult aspect for me, then, is this. This wretched presumption that hampers and stymies and confounds at every step of the way. This presumption that takes what would be an obvious case of injustice and turns it into a fight for a dismissal.

Take it a step at a time: the State (or prosecution, if you prefer) has already made up its mind about the defendant’s guilt. They’re initiating a criminal prosecution. In their mind, they’ve already convicted the defendant. That’s the hand they’re playing from.  “Why should I believe your client?” “You think a jury’s going to buy that?” “Oh, that’s his alibi?”

Skepticism and disbelief reign supreme. We have to prove to them that their initial assessment of the defendant’s guilt is incorrect. The burden is shifting.

The media coverage, if any, is almost always slanted toward the prosecution. Unbiased, non-sensationalist reporting is almost non-existent. The press plays a subtle role in shaping the opinions of the jury pool.

But there’s always the trial, you say. A determination of guilt or not-guilt to be made by a jury of “peers”. All 6 or 12 of them are indoctrinated about the presumption of innocence and all vow to uphold the State to its burden.

I have come to believe that that is hogwash. Jurors are smart enough to know what to say. They’ve also been reading the same newspapers and watching the same news. There’s still this cultural divide between “them” the defendants, and “us” the jurors. Someone’s been arrested and is going to trial? Well, there must be something to it or why else would the State waste its time?

The presumption goes to the State. If the State, in its benevolence and infinite wisdom has decided to pursue this matter, then, well…

If you had a client in whose case you believed the State’s evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in jurors?

I have this belief – it may be a naive belief – that most trials are won not because the jury upheld the presumption of innocence, but because the defense overcame the presumption of guilt.

It is human nature to want to hear both sides of a story and then decide which one is more believable. To force the jurors to perform their duty in a manner that is contrary to this human need is merely wishful thinking, no matter how forceful the instruction from the judge.**

The presumption of innocence exists in name only; a lofty ideal that we can thump our chests about and shout from rooftops. Look at this fine example of how just we are as a society.

The real truth, hidden in the backrooms of courthouses and in the ugly, dirty trenches of everyday warfare is quite different. Every morning, the defendant and the defense lawyer face a nearly unsurmountable task: overcome the fact that almost everyone but you thinks your client is guilty.

[*If you have a better response to that question, leave it in a comment. I’d be glad to hear and discuss it.]

[**Maybe, must maybe times are changing with the proliferation of DNA exonerations and wrongful convictions. But I’m not yet convinced. And DNA evidence is surely a double-edged sword for the defendant. Somewhat akin to Rule 34 is the Rule of DNA: If there is DNA, he is guilty. Oh, and Google Rule 34 at your own risk.]

33 thoughts on “The presumption of guilt

      1. michelle

        I wish I could get my Public Defender to try and act like shes on my side. Without that, on my own, I’ve no chance whatsoever.

  1. Darrowess

    In response to the most difficult aspect of being a publc defender:

    Wouldn’t you agree that the “presumption of guilt” is a burden that every criminal defendant must bear? Whereas public defender clients suffer from a double-whammy: not only are they presumed guilty; they are also disadvantaged by virtue of their indigency. Clients who cannot post bond are more likely to take a deal than those who have their liberty and can “hold the state to its burden.”

    1. Gideon Post author

      I agree it is. I was trying to be succinct in twitter terms, but there’s no reason my post couldn’t include this additional view.

      It is a sad reality that so many accept deals just to get out of jail. Frankly, it’s an ethical dilemma in my opinion. How do we counter it? Can we?

      Maybe it’s time for another post.

      1. Darrowess

        How about shortening the time period that a defendant must be continuously incarcerated before his speedy trial rights are triggered? (In a perfect world, the public defender would have the ability to investigate the case properly and be prepared for a speedy trial).

        1. Gideon Post author

          The two relevant time periods are 120 days and 8 months. They aren’t that long. The problem is with the tolling and the fact that discovery is never complete and investigations are begun only months after the initiation of prosecutions.

          Again, a resources problem.

        2. Gideon Post author

          I mean, ideally, we’d have a scheme whereby the defendant gets to have a trial 30 days from the time that he reports that the investigation is complete and the matter is ready for trial.

          Realistically, this probably happens frequently: when a speedy trial motion has been filed, no court is going to let the clock run down to the very end before scheduling it.

          But the problems with such a scheme are the burden it places on the defense to conduct a timely investigation. It assumes the existence of resources.

          This may not be a bad thing, overall, though. It is something we should be doing anyway and if there are enough defendants who don’t get speedy trials because of the lack of resources in the pd system, it may force the states to do something about funding.

  2. LJS

    To some extent, the media bias is institutional. Who does the media depend on for news about crimes — the police? Who does it depend on for tips about ongoing prosecutions — the police and the prosecutors?

    Setting aside for a moment the ethics rules regarding comments to the press — what do we say when the media calls — usually “no comment”. Why? Because nothing our client says typically can help him or her, and a quote, even if the reporter got it wrong, can badly hurt him or her. The police often have media departments or officers trained in how to deal with reporters. I don’t usually see that sort of response from the defense bar. Where are our folks providing factoids for the media on why presumption of innocence is important, or why a defendant has a right to a trial even when he or she is “obviously” guilty, or challenging reporters who get the facts wrong?

    The Innocence Project does some of this, but as lawyers we could likely do more to support the reporters who are willing to listen and challenge the folks who are not.

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  5. Kathleen Casey

    “The presumption of guilt” is what we call it where I practice and there was a joke in the bar assn. Bar-barian newsletter (published and mailed every March 30 for April Fools): “Presumption of innocence (pron. gil-tee).” That and a few other howlers vs. the DA got him whining to Appellate Division presiding justice who ordered it stopped. Gees. It may be that the local administrative judge blew it off. I understand it was the commentary on How to Batter Women (& filet and fry them) that got exceptionally serious people lathered. This was in the 90s. I still miss it.

    But what happens to defendants is no joke. That was the point.

    A wise post Gid, which has helped me think through a situation or two.

  6. alice harris

    Once, just once, I convinced a prosecutor to drop a very serious charge against a client well before the jury selection date. She trusted me. I trusted her. My investigation of the crime was thorough. That of the police, superficial. Because I trusted this particular prosecutor, I shared the results of my investigation with her. Wonderfully, amazingly, the case was dropped! Oh, what it be worth to have a State Attorney’s Office people by such honest prosecutors.

  7. Gerard

    So I’m reading the Journal Inquirer today about some person who pled guilty under the “Alford doctrine.” Which, as this non-lawyer understands it, means “I didn’t do it but I think I’d get convicted if it went to trial.” Which, logically says — if it is possible legally to prove something that didn’t happen — that whole presumption of innocence thing isn’t real.

    1. Gideon Post author

      That’s a fairly accurate understanding of Alford. The implication is also correct: the Alford doctrine and the presumption of innocence are both legal fictions.

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  12. Fruminous Bandersnatch

    I have a standing policy concerning criminal charges, which given that I get arrested periodically for such heinous offenses as “suspicion of suspicion (LAPD, 1981)”, has proved useful.

    For misdemeanors (which usually just cost me money) you will get an automatic guilty plea. Doesn’t mean I did it, it means that the cost/benefit analysis indicates that there will be less damage with an immediate guilty plea, pay the fine, and go on about my life.

    Felonies are another matter. Those involve jail time, I have to fight them. That can get expensive, but the cops can easily prove that I stole the car (all they have to do is to say so) but it is much more difficult to prove I owned it (requires pulling DMV records, getting the previous owner into court, etc. etc. etc.) (has happened three times so far). But you have to fight.

    And even if you can prove you bought the car off a lot in Pasadena, here is the title in my name, here is the salesman who sold me the car, here is the cancelled check I paid for the car with, here is the insurance policy and registration, doesn’t mean you will win. And the cops know this.

    It really all comes down to what you can afford, how much money you have.

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  14. brotherprofessor

    There is a structural dimension to this. Consider a typical arrest in the inner city. Three kids standing on a corner. Officers roll up and without warrant or probbale cause put their hand in the pocket of one of the kids. They find marijauana. He is arrested. His friends are too. If the two friends do not plead guilty, most do they are likely to stay in jail for about four months. No motions are filed. No hearings are held. At the end of the four months they are simply released, and all charges are dropped against the two so called accomplices. This accounts for thirty percent of the arrests in Miami. Maybe more.

    How is this justified. The arrest was based on guilt by association. No testimony is ever presented. If you look at the arrest report often it is either not filled out or only vague , conclusory statements are made.

    The prosecutor goes along with this, the judge, the private bar. This is the presumption of guilt at work. Of course with few exceptions the kids arrested are black or brown.

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