Ed. Note: In light of the negative sentiment in numerous high-profile criminal cases in recent history generated by both the public and many 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 Chris’s argument.
There’s a certain picture I have in my head of attorneys like myself who believe the presumption of innocence is a bedrock principle of the American criminal justice system. It’s Eugene Young from David Kelley’s show, “The Practice,” delivering his “America defense” summation.
If you’ve never seen it, Eugene musters the fire of an evangelical minister at a tent revival as he addresses the jury with something resembling the following:
Ladies and gentlemen of the jury this is America! And in America the accused is entitled to a presumption of innocence. Furthermore, the government must prove the accused’s guilt beyond a reasonable doubt. You may not like my client, you may think my client a bad person. You may turn your nose down on my client’s lot in life, but this is America! And in America, we have a presumption of innocence for the accused.
I love the presumption of innocence as a principle of the law. I think it’s an important tool to give those charged with crimes something close to a level playing field in a system where those charging someone have immense resources to take one’s life, liberty, and property. I can do this because I’m trained to think that way. Most people aren’t, and that’s why we must be realistic and address the presumption of innocence as just another technical legal rule.
Most laypeople don’t think like lawyers. As a general rule, laypeople are suspicious of others and deferential to authority. That’s why people in a jury box might be more inclined to believe someone with the authority of the government telling them a person at the defense table with a lawyer actually did horrible things and deserves punishment.
The more I turn this concept over in my head, the less I like treating the presumption of innocence as a principle. “Principle” carries with it a certain moral weight. Most people don’t like others moralizing to them, and most people don’t like having their principles challenged.
As advocates for the accused, selling the presumption of innocence to a jury is tough if we do it as a principle. If I’m a layperson sitting in a jury box and I’m told my principles must compel me to believe from the start that a suspicious-looking person accused of a crime is innocent, it’s going to make me feel hypocritical. No one likes feeling hypocritical.
My job as a criminal defense attorney is to zealously advocate for my client in the hope that the jury returns a not guilty verdict. While I’m constrained to act ethically, I’m not in a courtroom to preach ethics to a jury. I just have to provide the framework for them to find my client not guilty of the offenses charged.
Principles are for preachers and the church. What I can sell in a criminal trial is a rule.
We’re hardwired as humans to follow rules. Whether those rules are imposed by authorities (follow the posted speed, don’t double park, call your mother) or self-imposed (the shopping cart must face a certain way checking out at the grocery, stand facing the door of the elevator and speak to no one), we know it’s important to follow the rules on a daily basis.
Every time lawyers practice in court, we follow sets of rules. There’s rules of evidence, procedure, even local rules judges impose because they can.
Judges generally impress on juries from the moment the trial begins that there are rules jurors must follow. Prosecutors will attempt the same. Why not treat the presumption of innocence as the fundamental rule by which our justice system functions, and remind juries that too is a rule by which they must abide?
If the presumption of innocence is a rule, rather than a principle, jurors can keep their ethical framework and subconscious biases to themselves and understand the interplay of a trial as a sort of high-stakes game. The defendant as a rule starts out as innocent, and the prosecution must follow the rules by proving guilt beyond a reasonable doubt.
Framing criminal justice proceedings as a game may seem dangerous to some, but if we help juries simplify the process by laying the framework of this “game” with rules all participants must follow, then I submit it results in a net benefit for the client. Rule number one is the person charged with the crime starts out as innocent. Rule two is the government’s job is proving the accused’s guilt beyond a reasonable doubt.
So coming full circle, I’d like to propose a new version of the America defense: America 2.0. This is more of an opening statement than a summation, but it serves our purpose.
Ladies and gentlemen of the jury, if you haven’t figured it out by now the criminal justice system is governed by a series of rules. This court has already given you several rules to follow in your role as jurors. Attorneys like myself have rules of evidence and procedure we must follow as we present our cases to you. The prosecution has a special rule they must follow. They must prove my client’s guilt beyond a reasonable doubt. There’s a reason for that.
That reason is there’s another rule you must follow in your role as jurors. That rule says my client is innocent. That’s what we call the presumption of innocence. You may not like my client. That’s okay. You may think my client is the least sympathetic person on the planet. You may turn your nose down to my client’s lot in life. But the rules say you must begin this trial with the understanding that my client is innocent of any crimes of which he’s been accused.
As law-abiding American citizens we follow rules daily. And I implore you to continue that American tradition as you listen to testimony and weigh each piece of evidence the prosecution offers with Rule one first in your mind: the defendant begins this trial presumed innocent. Rule number two is it’s the government’s job to prove guilt beyond a reasonable doubt.
Those are the rules of a criminal trial. And you are charged with following the rules.
We can be idealistic and treat the presumption of innocence as this overarching principle we must impress on jurors. Or we can be pragmatic, tell them it’s one of the rules of the game in which they are engaged, and have an easier time grasping for that not guilty verdict our clients want. It’s great to have principles, but when a person’s life is in my hands, I’ll take the path of least resistance to get the desired result.
REBUTTAL: If you’ve read Mario’s argument (and if not, go read it now, because this is a debate) you’ll come away with a sparkle in your eye and a bit of Lee Greenwood’s signature hit dancing in the back of your head. Unfortunately, as my Miami brother from another mother led you down such a noble path, he did so with the presumption that people are rational. The sad truth is that these days most people reject rational thought in all but the moments when their brains are engaged in the most mundane tasks, like balancing a checkbook.
This is the age of people “speaking their truth,” #MeToo, rushes to clickbait headlines, and servers full of true crime podcasts. Ask a mother on the street if Casey Anthony is innocent. Behold the thousand yard stare you get for daring to pose such a question. Repeat the same experiment with Jeffrey Epstein and the average man on the street.
Our embrace of feelings is what makes your neighbors believe you must have done something when you’re led away in metal bracelets. It’s what keeps people buzzing about how OJ really “did it,” and dooms anyone hit with a #MeToo to a life of seclusion and side-eye glances. And unless we make it a point to shun the embrace of feelings in our return to principled lives, it’s never going to change.
Yes, I side-stepped what happens outside a courtroom and once the verdict is rendered. I did so because that world is governed by emotions run amok.
We can’t change someone’s feelings, no matter how much we try. However, the presumption of innocence has a fighting chance if we make people play by the rules.
While hoping it won’t be the case, I’m gonna risk making people stupider.
“Courts don’t do justice. Courts do law.”
That’s something we laymen eventually hear at this Hotel. While justice may be said to be based on principles, and laws made based on those principles of justice, the practice of law is then subject to myriad rules. So Mr. Machado and Mr. Seaton are both right.
But when it comes down to convincing a jury, which avenue should one go down?
The one that is most likely to give the desired outcome, based on how you read the jury.
Is there any reason not to use both as necessary, invoking both principle and rule?
Does it begin and end with a jury?
Nope, no matter whether the verdict is one word, or two, or no verdict at all.
That won’t change, because human nature.
But as long as there are places like this, where people can read things that make them think (if they so choose), then there is a chance that one or two of them will learn.
And if they should ever wind up on a jury, all the better.
In Chris Seaton’s view, the presumption of innocence is an example of what statisticians call the null hypotheses, the explanation that has to be accepted in the absence of sufficient evidence. That’s quite a come down from the Rumpole view of “The Golden Thread that something, something, something…..”
The genesis of my argument actually came shortly after Jeffrey Epstein’s suicide. I was in the middle of a discussion on the presumption of innocence with someone and ended up getting called all sorts of names right up to intimations that I somehow supported pedophilia by daring to suggest Epstein was “innocent until proven guilty in court.”
If I had the chance to redo that conversation I might’ve started by saying “like it or not, we have rules, and the rules say he’s innocent. Reframing it as a rule would allow the other party to grit his teeth, swallow hard, and go “Yeah, but I still don’t like him.”
Maybe if we reframe the presumption of innocence, which sadly has an undeserved bad reputation in our society, we can rehabilitate it. Give it a fresh coat of paint for public consumption. My argument might be rooted in the courtroom, but we can certainly take it to the outside world.
I hate to say…”there’s two kinds of people…” but it seems to me both approaches work for two different types. Personally, I’m NOT the authoritarian follower type…I hate rules and the rigidity that often leads to blind, unjust enforcement. The appeal to principals works much better for my type…when the virtue of the principal rings true, i don’t need a rule to enforce or guarantee my behavior. The less rebellious ‘sheeple’ types are more secure with a stricter adherence to the rule. Sadly, i think a majority of jurors would respond to your argument, Chris. The reason?…both sides tend to excuse the “thinking type” during jury selection as we’re too unpredictable.
I would dream innocence until guilt has been proven could be a principle, but I doubt society has the stomach for it.
It is too revolutionary to think of someone’s rights, but maybe someday we will.
Maybe someday, the jury will come back and declare a black man is worth more than three-fifths of a white man.
Maybe someday, the jury will save women from a lifetime sentence to being barefoot in the kitchen.
Maybe someday, the jury will decide straights are in the alphabet soup, too, and it all turns to dirt in the end.
Maybe someday, the jury will read the rule as principle, seeing assumed guilt for the trauma and, to borrow the social justice term, inherent violence that it is.
I mean this in the kindest way, but maybe someday I’ll come back, read this comment, and figure out what the hell you meant.
While appreciated, no kindness is needed. Gotta learn how to catch a ball somehow.
I have no claim to law, just oodles of feelings, passion, and two charts, ipa and a bar graph. Just want to clear the air before someone thinks I have any street cred.