A very high-profile American citizen has recently been arraigned four times, in four different jurisdictions, on 91 felony charges. Since many of us do not hold this defendant in high regard, we are frequently reminded that we should not rush to conclusions about the depth of his depravity, because according to the U. S. legal code, every citizen is guaranteed the right to be presumed innocent until proven guilty in a court of law.
Since presumption of innocence, like separation of church and state, is indeed one of the most sacred pillars of the American system of law and justice, it seems important to understand exactly what it means to be presumed innocent until proven guilty. That probably sounds like a concept which does not need explanation, but there appears to be significant misunderstanding among certain groups of people, who seem to confuse presumed with assumed.
Being presumed innocent is very different from being assumed innocent. It is also not the same as actually being innocent, and it is not the same as being found not guilty. Those presumed innocent may very well be guilty of high crimes, but they are still guaranteed the right to a fair trial, to have a “day in court,” and to have an attorney present facts to refute the evidence against them. “Guilty” and “not guilty” are verdicts, which can be rendered only after careful and thorough examination of all available evidence. It is the evidence which must either convict or exonerate—not friendship, loyalty, political affiliation, or “gut feeling.” Presumption of innocence is not a verdict; it is an attitude which is expected to be held until a verdict has been reached.
I’m embarrassed to admit that when accusations against Bill Cosby were first made public, I was reluctant to believe them. He had always presented himself as the ultimate wholesome, nice guy, loving family man, who was surely incapable of the heinous acts of which he was accused. I was wrong, not only in my judgment of his character but in my assumption of his innocence. Presumption of innocence means suspending judgment, coming to no conclusion until the facts have been sorted out. Assumption of innocence means prematurely acquitting an accused person before hearing evidence and testimony. Assumption of innocence is just as wrongheaded as assumption of guilt, because both shortcut the legal process and ignore the decisive factor: the facts, which can’t be fully known until both sides have had the chance to present them in court.
Presumption of innocence strikes me as similar to another phrase, used in the study of literary fiction: “suspension of disbelief.” The willing suspension of disbelief means that, when reading or watching a work of fiction, the reader or viewer temporarily avoids critical thinking and logic for the sake of enjoying the narrative. Samuel Taylor Coleridge wrote, “That willing suspension of disbelief for the moment, which constitutes poetic faith” (Biographia Literaria, 1817).
Thus, while watching L. Frank Baum’s The Wizard of Oz, I do not say to myself, “This is ridiculous! How dumb does this Baum guy think I am? I know monkeys don’t fly! And besides that, if there were some advanced civilization somewhere over the rainbow, astronomers would have found it by now.” I and every other reasonable adult in the world know these things are not possible, but we willingly put aside what we know about the world in which we live and allow ourselves to be immersed in the world of the work.
Presumption of innocence does not mean closing my eyes to facts which already exist and are widely known and documented. It doesn’t even mean I have to believe there’s an ice cube’s chance in hell that not a single one of the charges against the defendant will prove true. It simply means I will willingly suspend my disbelief in the person’s innocence and put aside what I already know to be true; and I will allow myself to enter the world of the courtroom and hear the narrative with an open mind.
Presumption of innocence, like the principle of separation of church and state, is not explicitly mentioned in the U.S. Constitution. Both are legal precedents which have risen to the level of equality with the Constitution in terms of their sacrosanctity. The presumption of innocence is based on three Constitutional amendments—the fifth, sixth, and fourteenth—and the case of Coffin vs. United States (1895). Although best known for its protection against forced self-incrimination, the fifth amendment also guarantees the right to indictment by a grand jury before felony charges may be made, prohibition of double jeopardy, guarantee that every criminal defendant must be given a fair trial, and protection against government seizure of property without due compensation. The sixth amendment lists the rights to which every criminal defendant is entitled: to be given a public trial without unnecessary delay, to be represented by a lawyer, to be tried by an impartial jury, to know who his/her accusers are, and to know the evidence of the charges and evidence which will be used against her/him. The fourteenth amendment guarantees, among other things, the right of all citizens to equal protection under the laws.
In the 1895 appellate case before the United States Supreme Court, F. B. Coffin and Percival B. Coffin were accused of aiding and abetting the former president of the Indianapolis National Bank in misdemeanor bank fraud. Court commentary on the case includes this statement: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”
It bears repeating, however, that even though presumption of innocence admittedly acts in favor of the defendant, presumption is not the same as assumption. If every defendant were required to be assumed innocent, there would never be a trial. What jurors and the public are required to do is to reserve judgment, to maintain an attitude of neutrality until due process has been completed.
The jury selection process operates on the same principle. Jurors are selected or rejected based on their ability to render an objective verdict at the end of the trial. Anyone who has already made an irreversible decision that the defendant is either guilty or innocent is rejected, because in either case the evidence will be moot and the trial meaningless. A list of typical questions asked of prospective jurors during the voir dire (literally, “to speak the truth”) process emphasize whether the individual is approaching the case with no predetermined conclusions.
I recall being questioned for the jury on which I served years ago, for the sentencing phase of a criminal trial. The judge asked questions such as whether I had already formed an opinion about how the defendant should be punished, whether I or a close family member had ever been the victim of a crime, whether I or any family member had ever been convicted of a felony, whether I had prior knowledge of the case or the defendant about to be tried, whether I had any bias against members of law enforcement, and whether I would have a problem rendering any one of the possible verdicts in the case. Each of these factors held the potential to affect my ability to hear the evidence impartially and to reach an unbiased decision.
The opposite of being presumed innocent until found guilty in a court of law is being tried by a kangaroo court, impromptu court, or mock court. “Kangaroo court” is the informal pejorative term for any quasi-legal procedure which ignores established standards; and such a court makes a mockery of justice, because the accused is tried, convicted, and punished without the right to fair representation.
To our national shame, the Salem Witchcraft Trials of 1692-1693 in colonial Massachusetts were carried out in a “special court,” the Court of Oyer and Terminer, which was an ad hoc court quickly established specifically to hear cases against those accused of witchcraft. Defendants were denied representation by counsel, and worst of all, spectral evidence was admitted. The Salem Witch Museum offers this definition of “spectral evidence”: “Spectral evidence refers to a witness testimony that the accused person’s spirit or spectral shape appeared to the witness in a dream at the time the accused person’s physical body was at another location.” The statement goes on: “It was accepted in the courts during the Salem Witch Trials.” More than 200 people were accused, and 20 were executed, on the basis of evidence impossible to refute, even if they had been allowed representation. How does one prove beyond reasonable doubt that a person did not see what he/she swears to have seen, however farfetched and absurd the claim may be?
We can all be grateful that the Court of Oyer and Terminer was disbanded and that such courts have been rare in this country. A government “for the people” demands an impartial court trial for every citizen accused of a crime, even one accused of 91 crimes. Maintaining a presumption of innocence does not mean I can’t assess the evidence already made public and say “Wow, that looks pretty damning” or “That doesn’t prove anything.” What it does mean is that I’m willing to be surprised; if evidence which contradicts what I’ve already seen is presented during trial, I’m willing to change my mind. It means I want to see justice done more than I want to be “right.” I’m not blind or deaf; I have seen what I’ve seen and heard what I’ve heard, but I have to assume there is more to be seen and heard, and I have to allow new information to change my opinion. So do you.