Don’t Blame The “Good Faith Presumption”

Three guys whose work and ideas I respect wrote that the presumption of good faith is wrong.  It began with an article by Andrew Cohen at ThisWeek, and was followed up by Gideon at A Public Defender, then Radley Balko.  Much as I may appreciate their sentiment, the foundational error of posts cannot go unnoticed.

Cohen started by writing:

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions.

While his 25 years in the law aren’t quite the same as my 30+ years, considering his involve writing about it from the outside while mine are formed by being smacked around in the trenches, I can’t disagree that public officials have done as much as possible to make us cynical about their motives. 

But that’s not a reason to question the good faith presumption.  Missing is an understanding of what it is and why it exists.  The law is replete with presumptions, the one most honored here being the presumption of innocence.  It means that a person is innocent until proven guilty. It reflects a fundamental policy choice, does a criminal defendant start from a position of innocence or guilt?  It proceeds to establish a baseline, where the burden of rebutting the presumption falls on the party that disagrees with it.  So the prosecution has the burden of proving guilt rather than the defendant having the burden of proving innocence.

There are others as well.  The presumption of regularity, for instance, that normal things happen normally.  It’s the legal analogue of the physician’s zebra presumption: when you hear the sound of hoofbeats, don’t assume it’s a zebra.  The normal is more likely than the rare and unusual.

But it’s just a starting point. Without starting points, the law would require litigants to reinvent the wheel from scratch every time.

The beauty of such presumptions is that they are rebuttable.*  The law may presume a public official to act in good faith, but that merely informs the parties of who has the burden to dispute the presumption and the burden of proof.

The presumption of good faith by public officials in the performance of their duty, as Cohen notes, is “an axiomatic cornerstone of both civil and criminal law,” and neither the law nor the government would be capable of existing without it.  We tend to favor survival, and that relies on bridges not falling down and traffic signals that prevent the selfish jerk in the Esplanade from t-boning the Prius.  We go to sleep at night because we believe the police are out there preventing some really bad dude from breaking into our homes and slitting our throats.

But sometimes, we’re awoken from our sleep by the door being broken down, a flash bang and armed men screaming “get on the floor, motherfuckers,” when they meant the door down the block but got confused.  And when we indignantly ask why, they shoot.

Andrew Cohen goes on:

I was taught that it was bad legal reasoning, not to mention poor manners, to challenge the motives or “good faith” of public officials.

Then he was taught wrong. It’s neither bad legal reasoning nor poor manners. If anything, it’s our highest calling to challenge public officials when they fail to act in good faith.  This is a lawyer’s sacred duty, for if we do not do so, then no one will. Then all is lost.

The Cohen post recites a litany of bad acts, bad motives, failures of good faith by public officials, all of which support the thesis that public officials too often act in bad faith and, more importantly, that other public officials, particularly judges, fail miserably in their duty to acknowledge this and correct it.

This is the core distinction that is confused by the challenge to the presumption of good faith.  The problem is not that we begin with the presumption, but that our system suffers from inherent prejudice that prevents public officials, particularly judges, from correcting the bad faith of other public officials.

The fault Cohen complains of is undoubtedly real, but the cause isn’t the presumption of good faith.  The cause is the refusal of establishment stakeholders to care enough about the integrity of the system and their own self-respect to make hard decisions, to condemn wrongs of their fellow establishment stakeholders and to use their power to correct the faults.

As Edmund Burke admonished, “The only thing necessary for the triumph of evil is for good men to do nothing.”  There is nothing wrong with the presumption of good faith, and our nation would cease to function without it.  What is wrong, and deeply wrong, is that those empowered to decide whether the presumption is rebutted lack the fortitude to serve the public, honor the Constitution and protect society.

We are a nation of laws, not men. That’s because men are flawed. Don’t blame the law. Blame the cowards, the ignorant and the venal.  And do something about them.

*  Not all presumptions are rebuttable; for example, presumption that a minor cannot consent to sex or that a child cannot form the mens rea necessary to commit a crime may not be rebuttable.

38 thoughts on “Don’t Blame The “Good Faith Presumption”

  1. John Jenkins

    I was looking forward to reading this the moment I read AC’s piece and saw everyone fawning over it despite the fundamental failure to distinguish between pro-state bias and the presumption of good faith. I was floored that both he and Radley could get this so wrong, so completely.

  2. Ben

    The problem with your argument, that the good faith presumption is rebuttable, is that it is damned hard to rebut. An unending series of decisions has handed us case law that makes it so that proving bad faith is nigh impossible unless you literally get a recording of the officer/official admitting and describing their motives.

    1. SHG Post author

      I’m going to try to explain this one last time: that’s not a problem with the good faith presumption; that’s a problem with the inherent systemic bias of those charged with deciding whether it’s rebutted. Separate problems. Sep-ar-ate-prob-lems.

      To drive the point home, by pinning the blame on the presumption, you excuse those who lack the guts and integrity to make the right call. They are the problem, not the presumption.

      1. Ben

        No, wait a second, you have to deal with the case law we’ve been given. You can’t just handwave away the problem as existing solely because of cowardly judges. They have to follow precedent, and that precedent has established a case law that makes it almost impossible to rebut that presumption. You have to have explicit proof of bad faith to rebut that presumption. So now that this precedent has been set and the case law is what it is, we need to now say is the presumption itself causing damage.

        1. SHG Post author

          So beyond conflating the separate problems, you think it’s better and easier to change a foundational presumption of our system, that applies to all of it rather than the one slice that you’re concerned about, than caselaw dealing with one aspect of the system, and which is ultimately determined by a subjective determination any way? Oy.

          I assume your complaint is about qualified/full immunity decisions. As I’ve already noted, there is a relationship between the presumption and immunity, but it’s indirect. Your invocation of “precedent” takes you even further away from an understanding of the separate issues. As much as I can explain this to you, I cannot understand this for you. And you, apparently, cannot understand this for yourself.

  3. Corollax

    I feel that my comment in the prior thread may have been a measure to clever for my own comprehension and composition. Discussing things further there would have been inappropriate, but I’ll tentatively interpret this post as a second opportunity. I’ll try to state things more plainly — and this time, from a perspective of inquiry rather than advocacy.

    You rightly state that we rely upon trust for a functioning society. We lack the resources to document and validate every action of every actor in our society. Instead, we extend a measure of trust to those acting on our behalf. In law, this becomes the Good Faith doctrine.

    From time to time, technological advances afford us the opportunity to rely upon evidence instead of presumption. What was previously impossible now becomes practical. While hardly universal, I feel this can be useful when applied selectively — particularly when actors are subject to a conflict of interest.

    Unfortunately, technology isn’t a panacea. It needs things like testing, maintenance, and someone to turn it on. The person being recorded is often in the most practical position for performing these tasks. But if we’re just going to take their word for it when the device malfunctions, you haven’t given them much incentive to use the equipment.

    In my previous post, I (ineptly) proposed circumstantial modification of the good faith doctrine. When actors are subject to a conflict of interest, they could be provided with means to document their actions. If the device provides clear evidence, we can use it with confidence. If it fails by no fault of the actor, then we rely on the Good Faith presumption. And if it fails from neglect or interference, this finding becomes evidence which the defense can use to dispute or dismiss opposing testimony.

    I now abandon that advocacy to acquire understanding. If I’m advancing an awful position, I want to know it (whether in those words or others still harsher). If it’s instead obvious and trite, then say that instead. If such is so, I can only infer that institutional issues impede implementation.

    I wish I could be more concise, but my last comment couldn’t convey the suggestion in such a short span. Thank you for your time and replies, if any.

    1. SHG Post author

      You have a specific issue in mind, though you don’t quite mention it: Recording police interactions. That’s a great idea, but the good faith doctrine is an overarching presumption, not one confined to police or the subset of police interactions. Your beef isn’t with the good faith doctrine, but the use of technology in a specific circumstances to provide evidence of an occurrence, and the concomitant presumption that in the absence of the use of that technology, there is a situation specific presumption that goes against the police.

      We have that with Miranda. No issue. I’m for it with recording police too, as well as a fact-specific presumption that failure to record gives rise to a presumption against the police. But this is not challenge to the good faith presumption, but rules addressing very specialized situations.

      1. Corollax

        Police interaction recording is one circumstance I had in mind, though I’d hoped to convey a wider context that referred to both police and prosecution. My understanding of prosecutorial issues is more limited and so my writing neglected it. Thanks for mentioning what I had missed.

        Coming from the perspective of Cohen’s article, I put my criticism in the wrong place. I was hoping for something more like “Trust, but verify.” But if I understand you, Cohen’s error was placing blame on the trust, rather than the failure to verify. And so I too misunderstood.

        More to the point, you assert that technological verification is just “a situation specific” supersession with no relation to good faith specifically. That leaves my post in the prior thread only relevant by nature of the situation. I now understand why it was off-topic. Sorry it took so long.

        1. SHG Post author

          Remember that “public officials” make millions of discretionary calls a day, from significant to trivial, upon which the wheels turn (or grind, according to which wheel you’re watching). If the rest of the machinery works properly, then the presumption of good faith, which is vital to the workings of government, which is vital to maintenance of our society, is uncontroversial. Would you have the postman prove he actually delivered every letter? Would you have the water service guy verify that your water is uncontaminated? Daily? And if you thought a letter wasn’t delivered, would you put the burden on the postman to prove he delivered that particular letter, or that the letter was not available to be delivered?

          We can deal with specific situations. For some, tech can be a perfectly viable fix, if not a cure. But the core problem is that the people running the machine have to do their job, each of them, every job, all the time, or the machine doesn’t work right. Don’t blame the machine for lousy operators.

          1. Corollax

            You’re right. Most of these responsibilities are so inconsequential that they don’t deserve the kind of treatment I mentioned. But while postmen don’t document every delivery, even they have return receipts. Most letters don’t justify them, but some do.

            If the point you’re making is that we have enough return receipts, then point well taken. We just need to hire better postmen when we don’t get back the receipt.

            1. SHG Post author

              Can you imagine how a government can function if every act by a public official was not presumed performed in good faith? It would be wholly untenable. When return receipts are used, we pay for them. Multiply that by every act by every public official everywhere.

            2. Nathaniel

              Precisely. I was surprised that you didn’t make that short statement in your original post; some of us simpletons do best with simple rebuttals.

            3. SHG Post author

              I make the same mistake everyone else does; sometimes, what I think seems to obvious to me that it ought to be similarly obvious to everyone else, and so there’s no reason to explain it. You’re right. I should have.

            4. Brett Middleton

              Wholly untenable? The way the costs of tracking every package and getting delivery signatures have made UPS, FedEx, DHL, etc. untenable? Funny how you never see any news stories about drifts of sodden FexEx letters found behind bushes. Perhaps the problem is with our imaginations rather than the actual tenability. (Hark! I think I hear the ghost of John Lennon singing. Must be time for my meds.)

  4. st

    “We are a nation of laws, not men.” It appears to this outsider that you are assuming the conclusion. All of the facts in evidence strongly suggest to me that we are a nation of men, perhaps lawyers, but certainly not laws. There is overwhelming evidence of a multi-tiered set of rules, one for the mundanes, another for the enforcers, yet another for the elites.

    Mundanes can be and are hammered at will, up to and including summary execution, for the most trivial violations of a panoply of laws so vast that ignorance is not only an excuse, but inevitable.

    The enforcers can and do commit assault, kidnapping and murder with impunity. Being called to account for these acts, even suffering the minor indignity of an adversarial interview, is so rare that it is literally headline news when it does occur. How many million examples would you like?

    The lawmakers and their elite backers are above all law. Witness the steadfast, systematic shielding of Wall Street from criminal liability. Or as Glenn Greenwald documented [Ed. note: Link 1 deleted per rules.]

    (1) not a single War on Terror victim — not one — has been permitted to sue for damages in an American court over what was done to them, even when everyone admits they were completely innocent, even when they were subjected to the most brutal torture, and even when the judiciary of other countries permitted their lawsuits to proceed; and,

    (2) not a single government official — not one — has been held legally accountable, either criminally or even civilly, for any War on Terror crimes or abuses; perversely, the only government officials to pay any price were the ones who blew the whistle on those crimes.

    [Ed. Note: Link 2 deleted.]Greenwald also wrote about the CIA agent who openly defied a federal court order, destroyed evidence, and not only wasn’t called to account for this, but allowed to profit by it.

    Again, how many more tens of thousands of citations would please you?

    If your argument about not blaming the good faith presumption is based on the assertion that we live under a rule of laws, not men, I must challenge THAT presumption.

  5. st

    Sorry to have violated the rules re:links in my attempt to give appropriate attribution to other’s work.

    I’ll interpret the mockery as tacit acknowledgement of my points, thanks.

    It never ceases to amaze me that slinging a bon mot or repeating a popular phrase is not only accepted but treated as a meaningful response in a forum that claims to respect logic, argumentation, and evidence. If you win the thread, so be it.

    1. SHG Post author

      Now I feel badly about being so flip. Your “points” are neither more nor less worthy due to my response. Unfortunately, you have failed to understand the point of this post at all. You won’t be alone. Few who aren’t lawyers will, and the nuance will be missed by many lawyers as well.

      I’m not unsympathetic to your points at all. It’s just that your points don’t relate to the issue discussed here.

      1. st

        Perhaps I do misunderstand the point of the post. It seemed to me you are arguing a narrow point about the the presumption of good faith. It’s true that I went out of those bounds by questioning the existence of the rule of law.

        I’ll plead only that I agreed with every word in your conclusion

        We are a nation of laws, not men. That’s because men are flawed. Don’t blame the law. Blame the cowards, the ignorant and the venal. And do something about them.

        Where we part ways is what is to be done. You have some ideas about e.g. judges changing.

        I’m not a lawyer, just a small business owner who has more lawyers than employees. The business is pretty far from Lavabit territory, but I don’t intend to make his mistake. Three felonies a day and all that.

        So where you look for solutions within a system based on the rule of law, I must question whether such a system even exists before deciding on a course of action. All the evidence at my disposal suggests otherwise. I know that’s out of scope, but when it comes to the question of what is to be done, we’re going to reach rather different conclusions.

        As for being flip, that is your prerogative. It’s your blog. Some bloggers cultivate their commentariat and value them despite their inability to stay on any topic for any length of time. Others don’t.

        1. SHG Post author

          This is a law blog, where the discussion is primarily for lawyers and judges. I value comments that add to the legal discussion, and tolerate others to the extent they aren’t seriously bad, crazy or make people stupider. Most non-lawyer comments fall into the latter category. One of the reasons this blawg has the readership and commentatiat is has is because of this. It would be far too easy, give the subject matter here, for it to devolve into the lunacy of reddit without a tight rein on the comments.

          My general advice to non-lawyers is to read if they want, but only comment if they really think they have something that is directly on-topic, illuminating and will add to a legal discussion. I don’t care if someone agrees with me or not, but that they add something illuminating or, at minimum, funny.

          As to your point of disagreement, you’re staring too hard. I’m a criminal defense lawyer. I’m well aware of all the damage done and the systemic failures that allow/cause it to happen. But I also know that they remain the outliers, that public officials engage in a million discretionary decisions/actions a day, and most do no harm and are, indeed, done in good faith.

          If you focus too hard on the things that go wrong, often terribly wrong, you forget that you never hear about the things that don’t. That doesn’t make it good enough, but it does help to maintain perspective. All is not lost. Not yet, anyway. So we continue to fight to make it better.

  6. Brett Middleton

    The presumption may not be the actual problem, but isn’t it possible that reversing the presumption might be the cure? It looks to me like a problem in positive feedback, where bad faith in one part of the system can protect bad faith in another part, escalating the problem. With this kind of a problem, you often need to go outside the loop to stop it. When the cows begin to panic, the stampede will not be stopped without bringing in a cowboy. If the cowboy is too cowardly, ignorant, or venal to face the herd, then the stampede proceeds to destruction. If there were a way to make the panic self-correcting, then the cowboy would no longer be needed, so his bias or lack of same would be irrelevant.

    1. SHG Post author

      Think your idea through. As with Corollax, you’re inductively reasoning, trying to fix a specific problem by changing an overarching presumption (see my responses to him). And analogies don’t make it any better.

  7. Fubar

    … The cause is the refusal of establishment stakeholders to care enough about the integrity of the system and their own self-respect to make hard decisions, to condemn wrongs of their fellow establishment stakeholders and to use their power to correct the faults. …

    … What is wrong, and deeply wrong, is that those empowered to decide whether the presumption is rebutted lack the fortitude to serve the public, honor the Constitution and protect society. …

    … Don’t blame the law. Blame the cowards, the ignorant and the venal. And do something about them.

    Point understood and taken. It invites the hard question “do what about them?” It even necessitates that hard question if one wishes actually to do “something about them” that is effective to reduce or eliminate the wrongs.

    I cannot answer that hard question. I don’t expect you to answer it. I do know there is strong temptation to avoid it by facile substitution of the wrong to be righted. If nothing else, such avoidance reduces the number of targets from many (“the cowards, the ignorant and the venal”) to one (the law). As you point out, the bad consequences of yielding to that temptation are many and great.

    If there is a useful answer to the hard question, then Voltaire provided some figurative guidance, “il est bon de tuer de temps en temps un amiral pour encourager les autres.

  8. Marc R

    I have no problem with the presumption of good faith, but it leads to legal consequences like sovereign/qualified/absolute immunity where the case law puts such an unfair burden on plaintiffs…I’m not sure what the answer is, as even vigilance is too often rewarded with a 12b6.

    1. SHG Post author

      Those are different, and more difficult, questions. Immunity isn’t directly tied to good faith, but it is an offshoot. I think there is enough of a conceptual ledge that we can have the presumption and still address immunity issues without going anywhere near as far as we have. But that’s a question for another day.

  9. PD Gumshoe

    I greatly appreciate the spirit of this post. As a criminal defense investigator I regularly deal with public officials who have made a litany of judgment calls regarding my cases. I have seen many shameful and disgusting things done by these individuals. However, I often run into problems with my coworkers when I dispute the intention of these actions. Generally I feel these public officials (here I am referencing mainly police officers and prosecutors) have acted in good faith. Unfortunately, as you note above, they are human beings and vulnerable to missteps, misinterpretations, and failures of reasoning. In my mind, that is the value of my job. I am another set of eyes on their judgments and interactions. Sometimes I find fault but it is not necessarily arising from bad faith. Maybe it is just human folly. We are there to set it right and move forward as professionals.

    All of this is not to say no one has ill intent. Of course some do. But I think that is the exception rather than the rule. In this I think we are in agreement, unless I have sorely misunderstood your point here.

    1. SHG Post author

      The bad calls, the ill-intended ones, are the ones that outrage us, so they’re the ones we remember. But a billion discretionary calls are made daily, most of which are totally uncontroversial. We can’t presume they’re all bad or we cease to function.

  10. Patricia Roberts

    It is easy to believe in the presumption that the majority of our public officials are acting in good faith unless you happen to be the victim of the exceptional one that isn’t, especially if you cannot afford to hire one of your profession to prove it.

  11. Patricia Roberts

    It isn’t the “victims” that are blinded by personal tragedy. It is a tragedy that the people we trust to keep us safe are the ones who refuse to see.

    1. SHG Post author

      This isn’t group therapy. I let you have one comment, ignorant though it was, as a courtesy. Now you’ve abused my courtesy. There are many places for victims to emote about their misery and how the entire world should change because of their personal suffering. This is not one of them. You’re done here.

  12. Mark Myers

    Doesn’t United States v. Salerno, 481 U.S. 739 (1987), mean that the presumption of innocence, (which you invoke to make your broader point about presumptions) is in actual practice something other than what you describe? Specifically, it is a trial right, and nothing more? I do not see how to reconcile the ideal you present, that it is the “most honored” presumption, with the holding in this case.

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