Legal scholars have argued that the presumption of innocence dates back
to the time of Deuteronomy and that the presumption was embodied in the
laws of ancient Greek city-states Athens and Sparta. Today the presumption
of innocence is a right guaranteed to those prosecuted in the United States.
However, the mental process involved in presuming someone innocent is
contrary to how we are taught to think on a daily basis.
Consider the last time you were driving on Interstate 80 when you observed
in the distance the red and blue flash of police lights. As you drove
closer you noticed a car had been pulled-over by the State Patrol. What
is the first thing that popped into your head? Did you think why did the
State Patrol stop that innocent man? Most potential jurors tell me when
they see a person stopped on the interstate they assume he was speeding
or committing some other law violation. They assume guilt. After all,
why would the State Patrol pull-over an innocent member of the motoring public?
Our first reaction to reading about an arrest in the newspaper is that
the person arrested must have broken the law. Where there is smoke there
is fire. In school we are taught to trust police and call them when we
need help. Surely, Officer Friendly, who is charged with the great responsibility
of protecting our citizens doesn’t make mistakes. If a police officer
provides sworn testimony against a person, that person must be guilty.
We want to believe our government would not charge a man with a crime
he did not commit. We trust that our public servants do not seek to
incarcerate innocent persons.
Now step into the jury box.
A juror must begin the trial with the presumption that the defendant is
not guilty! The juror must also begin the trial with the understanding
that the burden of
proving the case lies solely with the government. That’s right, the juror must presume
that the government with all of its power and resources is prosecuting
an innocent citizen. Further the jury may not draw any inferences against
the defendant from the fact that he has been arrested and charged with
a crime and is present in court or represented by an attorney.
The defendant has no burden of proof whatsoever.
The defendant does not have to testify, call witnesses or present any evidence,
and if the defendant elects not to testify or present evidence, this decision
cannot be used against him. The defendant is cloaked in the presumption
of innocence, that cloak, by law, withstands the attacks of the government
unless the government can overcome the presumption by erasing all reasonable
doubt that the defendant is guilty of the crime charged.
Even if the defendant presents no evidence, government witnesses that testify
are forced to endure the crucible of cross-examination by the defendant’s
attorney who seeks to expose their
motives, mistakes, misconceptions, and
Now step back out of the jury box and go back to your daily life.
Go back to your presumptions about
law enforcement, government, and
those accused of crimes. How many accused murderers, alleged embezzlers, arrested tax evaders,
suspected drunk drivers, and reported child abusers have you presumed
innocent this year? The answer I usually get from prospective jurors is
“none.” And yet, most jurors can recall at least one instance
in which he or a person he knows well was falsely accused of wrongdoing
Presuming someone innocent is difficult.
Everyone wants to hold accountable those who break the rules; we want to
be tough on crime. Yet, The presumption of innocence requires jurors to
hold our government accountable to a standard of law. This presumption
of innocence is the same legal standard that protects you and your family
from accusers. This is the American way.