Debate: Enough With The “Technicality” Argument, Presumption of Innocence Matters

Ed. Note: In light of the negative sentiment numerous high-profile criminal cases in recent history generated in both the public and members of the legal profession, Fault Lines alumni Mario Machado and Chris Seaton were tasked with debating the following: “Is the presumption of innocence a viable guiding principle or is it just a technical legal rule?” The following is Mario’s argument.

It’s 5:30 am, and you’re sound asleep, due to be up in about an hour for another hard day’s work, because you’re lucky enough to have a thriving business. Your beautiful wife lies next to you, and your three wonderful, intelligent kids are snoozing next door.

You had a few cocktails too many during the night prior, but it’s nothing you can’t get over after a greasy breakfast. Then comes the rudest awakening by knocking you’ve ever had. BANG! BANG! BANG! BANG!

You rouse yourself, walk towards the front door, with your wife not too far behind, still in her sleepwear. As soon as you open the door, you see half a dozen federal agents, wearing flight jackets, guns drawn.  About ten local cops came along to provide extra muscle, as if you were the second coming of El Chapo. They tell you to drop to the ground, and you comply without hesitation, because you’re one of the innocent good guys, and that’s what innocent good guys do.

As you’re led away in front of your neighbors — who now, along with the agents, are convinced that you must’ve done something to provoke this reaction — your wife calls the civil attorney who helped you sue your former business partner who turned out to be a scumbag (more on him later), who then provides her with a phone number of a criminal defense lawyer.

A few hours later, you’re brought in shackles before a Magistrate Judge, as you’re groggy, scared, and confused. On the way out of your house, the agents ask you to “come clean” inside the van, sign away your rights, and tell you that you’re being charged with wire fraud in the hundreds of thousands. In the courtroom, the government attorney tells the Judge that “there’s a lot of money missing,” and that you have “extensive foreign travel,” so you should be kept in custody awaiting trial because you are a flight risk. Suits you right for enjoying the fruits of your labor and traveling outside the country six times in two years for family vacations.

That afternoon, your lawyer visits you at the detention center, where you get to strut around in dirty olive garb and crocs.  After getting the “I’m shocked” and “I’m innocent” out of the way, your lawyer tells you the first good news you’ve heard since being led out of your house and humiliated in front of your friends and family (the latter effect is multiplied infinito if you’re anyone famous or notorious): you don’t have to prove your innocence.  In fact, you don’t have to prove a damn thing to a jury of your closest friends peers.  You don’t even have to testify in your own defense.  You are presumed innocent unless and until the government prosecutors prove your guilt to a jury beyond and to the exclusion of a reasonable doubt, and that’s the way it should be.

The presumption of innocence is not just a “technical rule,” as Chris Seaton, my contrincante, may have you believe. When that presumption of innocence is all you have to pit against the might of the government, the stigma that comes with arrest, and the possibility of innocents being convicted or the guilty being overcharged by a government that has unrivaled resources and access to information, a technical rule will not do. It’s the principle, the spirit, the concept that you’re presumed innocent that will give you a fighting chance to walk – no pun – out a free man after the government will do everything it can to convince the jury that you’re guilty of the horrible things they’re accusing you of. But, it gets worse there is more.

Among other things, as you eat junk from the visiting room vending machine, your lawyer will tell you the government has been investigating you and your business partner for years now.  You will learn that, yes. maybe you haven’t comported yourself in a totally ethical manner during your business dealings, but that doesn’t necessarily make you a criminal. But, in order to keep you unethical and not criminally convicted, you have to spend invest a small fortune in your defense, because those are the rules. Your lawyer has to buy bespoke suits eat.   And that conniving bastard partner of yours? He beat you to the punch and had his lawyer call the  prosecutor months ago to make arrangements for many snitching sessions debriefings, where he was able to convince the vaunted prosecutor to go after you and use him as the star government rat witness.

This wave of cloacal abuse that is coming your way cannot be repelled by the mere concept of a “technicality.”  It is something that lives on from the our founding fathers, part of a set long-standing principles that live and breathe to this day, that exist in order to fight back against a tyrannical government. The word “technicality” is nothing but soft language, an empty bag, and ‘tis hard for an empty sack to stand upright against a criminal prosecution and the stigma it brings with it.

These principles do should extend well beyond the province of the courtroom, well after a jury has returned a two-word verdict.  As a human being criminal defense lawyer, I must admit it disturbs me some when someone says an acquitted person like OJ is nonetheless “guilty,” because they say so, or worse, because that’s what they “feel.”  Had Bill Cosby or Harvey Weinstein – whose lawyer did the Herculean task of keeping a jury out for 4 days for someone who was “guilty” since the first minute — been acquitted of all charges, hearing a nincompoop say “believe-the-victim-no-matter-what” would’ve felt like having a tic in my ear.

The viable guiding principle of the presumption of innocence is all that will do during times like these, when I’m sure people would get tarred and feathered should the forces of law and order fail to properly intervene.  This is especially true when there has never been an office to get one’s reputation back after being acquitted.

Should I choose to correct such babble by saying these guys got off – no pun – on a “technicality,” especially in the age of the #MeToo movement, I would be endorsing such nonsense, giving it the proverbial thumbs up.  Should I instead wax about the principles of the presumption of innocence, and the cherished values that come with them, that person would be left holding an empty bag, not unlike my dear friend Chris.

Rebuttal: Interestingly, the word “feelings” appears thrice in Chris’ rebuttal, while it only appears once in my piece, but I use the term as something to avoid in favor of the principle of the presumption of innocence.*  Your not-so-humble-servant’s aim is to convince people to raise their sights, and to try to be the adults in the room who will shun feelings when discussing something so vital as the presumption of innocence.  Chris is no stranger to our collective efforts to make people smarter, or at least not dumber.

And I’ll use this space to double down: even if some people, especially lawyers who have shunned the trenches throughout the career and just love to give us their insights on Twitter, really “feel,” or “know” that someone committed a crime but is later acquitted, that person is innocent and they should say so. So many speak as if they were there when the crime was committed, or not, and as if an acquittal is of no legal consequence.

Chris argues that by thinking of the presumption of innocence as a rule instead of a principle, “jurors can keep their ethical framework and subconscious biases to themselves.” But jurors will generally not keep those biases to themselves behind closed doors, the same way that not even the most illustrious defense lawyer will convince them to get rid of those biases during jury selection.  They’re there to stay, and the last thing we want is for them to keep them inside.

If anything, we would want them to express those biases in favor of our client and/or against the government during deliberations.  And are most people really “ethical,” anyway? They’re more likely to embrace the idea of principles over ethics.  Most people just want “the good guy” to win, and they want to go home thinking they did “the right thing,” whatever that means to them.

*Generally, rebuttals should address the original posts and not serve as replies to rebuttals.  Guess that’s a low blow on my part, but Mr. Seaton can always address that line in the comments section.

9 thoughts on “Debate: Enough With The “Technicality” Argument, Presumption of Innocence Matters

  1. Brennan

    It seems like Chris is basically arguing for using something like Game Theory in trials, while you’re arguing for something much more ambitious, and not really attainable. Neither of you are actually saying that the presumption of innocence shouldn’t be a deeply held value, Chris is just more realistic that most people aren’t going to adopt that value. You both use O.J. as an example, and I think that’s telling; we’re just a few months shy of 25 years since his acquittal, and the consensus is overwhelmingly on the side of guilt. Even though the presumption of innocence, like due process generally, should be a value and not just a rule, that’s just not how it is. Stressing its weight as a rule is not going to remove anyone’s bias, but it can emphasize the jurors’ role as jurors enough to get around that bias. Your approach would require tackling that bias head on, but that’s just not going to be as effective as trying to get them to follow the rules. It’s much easier to convince someone to temporarily set an idea aside for a particular purpose than to discard it entirely.

    Reply
    1. SHG Post author

      But what if you get the acquittal, but the deft is still universally condemned as guilty? Is the question broader than just trial? Is that too hard, so it’s not worth the effort?

      Reply
      1. Brennan

        It’s broader than just trial; lawyers and civil libertarians have been trying to persuade people to adopt the presumption of innocence as a value and not just a rule for a while now, and that’s a worthwhile goal. There’s little risk of losing anything by arguing for that position in op-eds, on blogs like this, and wherever the opportunity presents itself. But Chris’ post seems particularly focused on the utility of particular arguments: “[p]rinciples are for preachers and the church. What I sell in a criminal trial is a rule.” In his rebuttal, he does seem to write off the world outside the courtroom, but that’s a small part of a broader argument about how to argue for the presumption most effectively.

        Mario seems to write off the idea that presenting the presumption of innocence as a rule instead of a value can be effective in the trial arena: “But jurors will generally not keep those biases to themselves behind closed doors, the same way that not even the most illustrious defense lawyer will convince them to get rid of those biases during jury selection.” That seems to miss the point of Chris’ argument, that there is fertile ground to be plowed by making a rule-based argument.

        Reply
    2. Mario Machado

      How juries should approach the presumption of innocence is one of my points, but I’m looking to raise the sights, and I ask why those who weren’t empaneled just can’t, won’t, accept the person’s innocence after an acquittal.

      The trial mechanism is flawed, but short of a Perry Mason moment or having been at the scene with one’s senses untrammeled, it’s the best we got to get to the “truth.”

      It shouldn’t take so many mental gymnastics to go from assuming, no, accepting, that jury trials is the best we got, to having the courage and principle to say an acquittal=innocence. Or, giving up some ground, acquittal=not guilty.

      I may be a hopeful romantic, but I’ll finish with a question: what’s it going to take for some to begin to embrace this principle? If it’s impossible, it would break my heart, maybe they should just take a bulldozer to all those big, marble buildings.

      Reply
      1. Howl

        You are already doing what it will take. By writing about it, and having places like this Hotel where such writing is available, there is a chance that an idea might lodge itself somewhere in the back of someone’s mind. That idea may someday come to the forefront of their thoughts, and they may even think it original to them. It may be only one mind where that thought takes root, but that’s one more than before.
        Most people won’t think about it. Most people are not good at gymnastics, physical or mental. It just won’t matter to most people. But it will matter, it will make a difference, especially if that thought is in the mind of someone who might decide another’s future, be it a juror, prospective employer, neighbor, etc.
        At the risk of going full metal maudlin . . .

        Reply
        1. Mario Machado

          Thanks, Howl.

          And speaking for windmill tilters everywhere, that starfish video ain’t half bad.

          Reply
      2. Brennan

        Some are never going to embrace it. Fear of crime is clearly a powerful motivator even when crime is at historic lows. I think we can get a lot more people on board than currently are though. We’ve already seen some progress in that direction over the last couple of years, carceral #MeToo stuff notwithstanding. But still, Chris’ point seems best suited for trial situations. If someone is amenable to a principle argument, I don’t see why they wouldn’t be amenable to a rule argument as well. And if they aren’t amenable to a principle argument, the rule argument is a way to lock them into the juror role. There’s some psychological literature that indicates that people take roles seriously when they’re assigned one by an authority figure, and using that tendency seems more likely to succeed than trying to change their mind about the presumption itself.

        Reply
  2. Markham Shaw Pyle

    It may be that jurors find talk of “rules” more suasive than talk of ‘principles;” or it may be other way ’round. I can say only that – assuming the Court allows defense counsel to talk of ‘rules’ at all (it could be construed as impinging on the Court’s control in allowing what goes into the jury instructions) – I’d rather have Squire Machado’s record and transcript on appeal (from the D’s perspective) than that created by Squire Seaton.

    Reply
  3. Pingback: The Presumption of Guilt | Fresno Criminal Lawyer

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