A few years ago, I wrote a blog post on The Presumption of Guilt. Scott Greenfield’s blog sparked my fire that day. And I’ll be damned if another Simple Justice post didn’t rekindle it. And then, before I could finish this post, he added fuel to the fire.
But, before we go on to the new conflagration, a quote to remind you of my core complaint about the Presumption of Guilt, from the first fire.
Our legal system no longer seriously endorses a presumption of innocence, and people have been taught that belief in a presumption of innocence is almost laughable.Rick Horowitz, “The Presumption of Guilt” (March 4, 2020)
Sticking to the Point
I don’t blog as much as I used to; I don’t blog as much as I could; nor even as much as I think I should. A big part of the reason — and here I digress, proving I failed to digest — is that I don’t focus much when I blog.
I mean, that’s what Scott Greenfield suggested. And I often think Scott Greenfield is right. It’s why he gets linked/quoted here so often.
Really, I blame it on Benjamin Franklin — who also gets linked/quoted here a lot — who once said,
I have already made this paper too long, for which I must crave pardon, not having now time to make it shorter.— Benjamin Franklin, a letter describing his groundbreaking experiments involving electricity to a member of the Royal Society of London (1750)
So let’s see if I can stick to a point this time, and come up with a shorter post.
Why Do We Have Trials?
Simply put, trials exist because long, long ago, we cared about not locking up, or killing, people unless they actually committed crimes. For the most part, we understood that “proof beyond a reasonable accusation” was just not good enough.
We learned that through numerous difficult historical examples, including the Star Chamber, and the Salem Witch Trials, to name just two. (Technically, the Star Chamber example explains why we have the 5th Amendment prohibition on forced self-incrimination. The Star Chamber, however, showed that the accusation was enough; a presumption of guilt took the place of any presumption of innocence. Failure to testify against oneself constituted perjury, or contempt of court.)
The Presumption of Innocence
It should go without saying that merely accusing someone of a crime is not in any way proof that a crime was committed. By anyone, least of all the person accused. That is, not only is it not proof that a particular person committed the crime of which they are accused: it’s not even proof that the crime itself was committed.
This is why, even for plea agreements — essentially a confession — the courts require a colloquy, however farcical. And although such agreements are usually a sham, they are required to maintain the prison-industrial complex: in the absence of either a jury verdict of guilty, or a plea agreement, innocence is presumed, and people don’t get locked up.
Except for pretrial detention. But that’s for another post (which — yay, me! — I already wrote).
There are places you can go to read about the history of the presumption of innocence. Presumably, some of those sources will tell you why the presumption is important.
Well, I don’t have time to digress into digesting any of those sources. Seek, and ye shall find.
But, if you ask me, the primary reasons for the presumption of innocence boil down to this:
- People lie.
- It’s almost always easier to prove something happened than to prove that it did not.
- It seems only fair that a person saying someone did something should be forced to prove it.
The first point, as Scott Greenfield pointed out in “People Lie,” is simply this:
People lie. Men are people. Women are people. Blacks are people. Whites are people. We’re all people, no matter what combination of intersectionality you raise. And people lie. Distinguishing between the truth and the lie matters, and if your bias is to believe regardless of the facts, then you empower liars.— Scott Greenfield, “People Lie” (October 15, 2022)
When it comes to accusations of criminal activity, there are all kinds of reasons for people to lie.
Maybe it’s to gain an advantage over another. I see this most often with parents in a custody battle. Mama convinces the daughter to accuse Papa of touching her pee-pee spot, or her baby hole, or even her pooh-hole. Boom! No custody for you!
Well, not the kind you were hoping for, that is.
A young woman wants money from an older gentleman who was stupid enough to make advances at her, not realizing what a grifter she was — and if she doesn’t get what she asks for, to the cops she will head!
Or maybe it’s to punish someone for a perceived wrong, and the punisher fails to recognize the irony of punishing someone for doing something wrong by doing something wrong. A guy sleeps with his wife’s girlfriend, or maybe just texts her innocently, but the wife doesn’t read it that way. Boom! Domestic violence is easy to prove: you just say it happened.
I mean, how do you know it didn’t? That’s proof beyond a reasonable accusation. To put a spin on the old religious children’s song:
She said it.— Heritage Singers, “God Said It, I Believe It, and That Settles It For Me” (1976)(paraphrased)
I believe it.
That settles it, for me.
The problem, of course, is that maybe it didn’t happen.
Proving a Negative
While faith may be the essence of things unseen, the substance of things hoped for, under the law we sometimes say that the presumption of innocence is required because you cannot definitively prove an unseen negative, however much you hope to.
Strictly speaking, this is not true. Logic purports numerous ways to prove a negative, not the least of which is the principle of contradiction. (Oddly enough, this is also sometimes called the law of non-contradiction. This is not, itself, a contradiction.)
When applied in a legal context, one might say, “Well, I can prove the negative — that I did not rape that girl in Farmersville, California, on Friday the 13th of October, after taking her out for dinner — I was not in Farmersville that Friday. I was in Fresno, Texas.” If the speaker can prove he was in Fresno, Texas, at that time, he just proved a negative: that he did not commit the rape in Farmersville, California.
Why? Because to commit the rape, he needed to be there. If he was in Fresno, Texas, then he wasn’t in Farmersville, California. Therefore, he could not have committed the rape.
Thus, he has proven a negative: that he did not commit the rape. Although, I guess, if you think about it, he still proved a positive: that he was in Fresno, Texas, at the time of the alleged rape.
There are other ways to prove the negative; this is just the most obvious.
The problem for defendants — and a fair and just legal system — is that cases susceptible to proving a negative are just a portion of those brought before the courts.
Varying Standards of Proof
That’s why we don’t just have a presumption of guilt — like Superior Court judges dishonestly rely upon — and instead insist that the real, but incredibly rare, judges in our society (i.e., jurors) rely upon the presumption of innocence.
It is easier to prove that a thing did happen than to prove that it did not. Or, to play off what I said above, it’s easier to prove a positive than to prove a negative. So simple fairness requires that the accuser prove the accusation beyond a reasonable doubt.
Because, if you think about it, if what you mean by “prove” is “to show that something is true,” then you can’t really prove most things definitively, whether positive, or negative. You can convince someone, maybe. You can show that some thing is more likely than some other thing.
This is why, when it comes to Law, we have different burdens, or different standards, or levels of proof. Additionally, those burdens are placed on different persons in different situations, but when it comes to proving a legal case, the burden is almost always going to be on the accuser. In a civil case, that will be the “plaintiff.” In a criminal case, that will be the “prosecutor.”
So, in a civil case, a plaintiff may sue someone for allegedly battering her. The burden of proof may be “preponderance of the evidence.” This is a very low standard. In a criminal case, the prosecutor is held to a higher standard: “proof beyond a reasonable doubt.”
We put the burden on the plaintiff because — as I said — it’s easier to prove a thing did happen than that a thing did not happen. After all, not everyone can be in Fresno, Texas, at the time the crime was committed in Farmersville, California.
And the standard is harder for the prosecutor because a criminal case can result in loss of liberty; in a civil case, it’s usually just money that is at risk.
What it comes down to is, “What do we worry about most? Locking up innocent people? Or possibly letting some guilty people go free?”
The Origin of Speciousness
Modern Americans worry most about letting some guilty people go free. Locking up innocent people is necessary collateral damage, so long as it’s someone else being locked up.
This brings us back around to Scott Greenfield’s articles. In the first one, Chris Seaton — one of the best writers I know — argued
[The presumption of innocence is] an important tool to give those charged with crimes something close to a level playing field in a system where those charging someone have immense resources to take one’s life, liberty, and property.— Chris Seaton, “Debate: Presumption of Innocence? Just Another Rule” (March 4, 2020)
Chris argued against the idea that this was a bedrock principle. He favored thinking of it as “a rule.” The reasons for the distinction are, if you ask me, irrelevant. Chris’s original point remains: the presumption levels the playing field.
Therein lies the problem for modern jurisprudence.
Judges, like their not-yet-enrobed colleagues in the DA’s office, dislike anything that gets in the way of efficient convictions. This is why everything works to force a plea agreement. So judges — particularly where I practice — have worked hard to obliterate any presumption of innocence. This leads to some pretty bizarre arguments to justify pretrial detention. But, more importantly, it instills fear in accused people. They think, “If the judge already believes I’m guilty, what hope do I have?”
Add to that the “revolution” that occurred in the 1980s, with the development of “believe the children,” and the pseudo-science that goes by the name of Child Sexual Abuse Accommodation Syndrome (see my article on that here). Then add to that the #MeToo movement.
Remember what I said about it being easier to prove something happened than that it didn’t? Well, while that is true, leveling the playing field by requiring proof beyond a reasonable accusation mucks things up a little in sex cases. Few people witness such crimes.
The only way to overcome that difficulty is by throwing out the presumption of innocence. Adopt the Heritage Singers approach. Shift the burden to the defense to prove innocence.
Boom! The prison-industrial complex gains new bodies. The “survivors” rejoice! The prosecutors rejoice! The judges rejoice!
It’s a win-win-win for everyone.
Well, everyone who counts.
And, in the United States, the accused do not count. They don’t have any rights. The accused are not people; they’re monsters. Thus, in California, we caption our criminal cases as The People of the State of California v. Defendant. The defendant stands opposed to — apart from — the People.
And the presumption of innocence is a catchphrase that means nothing. We require only proof beyond — and not even really beyond, except procedurally — a reasonable accusation.