Kenneth Frank Patrick Lammers Junior has entered a new phase of production value, with dim lights, blurred hand motions and no corresponding movement of lips to speech.  I like it.  It could use a damsel in distress in a trench coat to flesh out the character development, but even so it was a moving experience.  This is the new CLTV 38 at CrimLaw.

Except for one thing.  I wasn’t all that excited about the plot.  Ken picked apart the distinction between “presumed innocence” and “actual innocence,” discussed here and at Grits here.  Ken begins by talking about the various levels of proof, starting with reasonably articulable suspicion and probable cause, and working his way up to preponderance of the evidence and ultimately beyond a reasonable doubt.  Ken notes, and I agree, that except for preponderance, the definitions of these various levels of proof defy meaningful explanation.

In other words, judges conclude that they either are or aren’t met, but can’t provide any reliable reason why.  It’s just another one of those things we make up in the law, and then pretend we know what it means but are forbidden from explaining it to regular people because it’s a trade secret.

Ken’s point in all this, as I understand it, is that while a defendant may be acquitted because the jury concludes that proof doesn’t meet the highest burden, beyond a reasonable doubt, it doesn’t mean that the proof didn’t meet the lower burdens.  Therefore, the defendant has been proven guilty, but just not enough to satisfy criminal liability.

Ken then goes after the language, “presumption of innocence,” attributing it to some ancient idea of a good way to express the notion that the defendant isn’t proven guilty until he’s proven guilty.  Ken prefers a construct along the lines of a blank check, nothing having been proven rather than a defendant presumed innocent.  This follows the fact that a defendant doesn’t go to trial until probable cause is proven.  While Ken concedes that probable cause is minimal, and easily met, at least it’s something.

The confusion, therefore, stems from some historical use of the “presumption of innocence” language rather than any actual belief that a defendant is innocent until proven guilty.

I have to disagree with Ken’s formulation.  By his theory, a defendant is a little guilty until proven really guilty, merely by dint of an accusation.  Probable cause adds nothing to the mix, serving only to put a stop to a prosecution if it’s so utterly lacking in any basis to proceed.  This it what Sol Wachtler spoke about when he said the prosecutor could indict a ham sandwich.  There’s no comfort in PC.

In fact, Ken’s formulation serves to highlight the basic problem.  You’re walking down the street, minding your own business, and suddenly jumped by your favorite SWAT team and tossed into the pen.  Pictures of some guy who looks like you just knocked off the Savings & Loan a block away.  Under Ken’s formulation, your either a little guilty or you have to prove your innocence.

Ken shifts the burden onto the defendant to prove “actual innocence,” something he concedes is nearly impossible except in DNA cases.  If you can’t do so, then you’re guilty, but just not guilty enough to meet the required burden.  So basically, once an accusation is leveled against you, you’re screwed, and the only question is whether it’s bad enough to send you to prison.

The presumption of innocence means something in my book.  It means what it says.  You are innocent.  You remain innocent.  And innocent means innocent.  The burden isn’t on the accused to prove he’s innocent.  The defendant should not be held to prove a negative.  Certainly the prosecution isn’t held to do so.  And this doesn’t change because someone, whether a cop, a spouse or a bank teller, claims otherwise.  An accusation means nothing.  It’s easy to accuse, particularly when it’s a crime for which no hard evidence exists, and it’s impossible to disprove.

Ken then proposes an interesting notion.  Why not have juries pick from three, rather than two, choices:  Guilty, not guilty or innocent.  At first blush, this doesn’t sound too crazy, right?

But it is.  It shifts the burden of proof from the prosecution to the defendant, where a verdict of innocent would require that the defendant prove “actual innocence” while the prosecution tries to prove guilt beyond a reasonable doubt.  Ken’s lightened the load a bit, suggesting that only 10 out of 12 jurors need agree on actual innocence.  It’s a kind thought, but still not enough.

And it suffers from yet another infirmity.  It is quite possible that a wholly innocent defendant be placed into a position of appearing more likely guilty than not (the preponderance standard), when an eyewitness identifies the defendant as the perpetrator of a crime that he simply did not do.  This is compelling evidence, even though it’s of dubious value given the frequency of false identifications and the problems inherent in eyewitness testimony.  But even when it may not be sufficient to meet the beyond a reasonable doubt standard, rarely would a jury reject it so completely as to conclude the defendant to be innocent.

The upshot is that a person is in law, and more importantly, in fact, innocent until that shroud of innocence is removed.  To allow otherwise is to conclude guilt based solely on accusation, and then shift the burden of innocence onto the defendant, regardless of whether guilt beyond a reasonable doubt is ever proven.