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 fabrications.
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 by somebody.
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.