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.