As criminal defense lawyers, we all talk about the presumption of innocence. We hear judges talk about the presumption of innocence. We explain it to juries. It appears in every jury charge. We all agree with it, and in large part, our jury panels do, too. They nod along in silent agreement when we talk about the presumption of innocence and answer affirmatively when asked whether they can apply it to the case at hand. But, are they really understanding and applying it or are they just going along to get along, so to speak? And, what does the presumption of innocence really mean?
Did you know the phrase “presumption of innocence” doesn’t appear anywhere in our Constitution? It is, of course, embodied in the due process clause of the Fifth and Fourteenth amendments. As artfully articulated by Chief Justice Burger, in Estelle v. Williams, 425 U.S. 501, 503 (1976):
The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Drope v. Missouri, 420 U. S. 162, 172 (1975). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:
“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U. S. 432, 453 (1895).
To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship,397 U. S. 358, 364 (1970).
Our Code of Criminal Procedure addresses the presumption directly in Article 38.03:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
This is the familiar language we see in all jury charges. The presumption is also addressed in Article 2.03(b) which provides, in relevant part,
[i]t is the duty of the trial court, the attorney representing the accused, the attorney representing the state, and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence . . .
U.S. District Judge Mark W. Bennett, Northern District of Iowa, has been reported to demonstrate the presumption of innocence by stepping down from the bench and shaking hands with the accused. Point made. In a single, simple demonstration, Judge Bennett shows the jurors how to apply the presumption of innocence. He puts meaning to the words. Personally, I’ve never seen a judge do anything like this, though, so it’s up to us to make sure that our jurors fully understand the presumption of innocence, understand its importance in our system, and know how to actually apply it in their service. As trial lawyers, we have all developed our own ways of explaining the presumption of innocence to jurors. Some are original but most are borrowed and put into our own words. So too, is what follows.
Along with proof beyond all reasonable doubt, and the Fifth Amendment, the presumption of innocence is one of the pillars of our criminal justice system. These are concepts central to our justice system. They are easy to say but hard to apply. We all may agree with them on a superficial level, but actually applying these concepts is much more difficult. It’s in actually presuming someone innocent—the doing of it—where the rubber meets the road. It’s counterintuitive and generally against our human nature.
My longtime paralegal is a diehard Patriots fan. She loves them. Last season she sent me a picture of her and her dog in their matching Tom Brady Patriots jerseys watching the game. It was an over-the-top cute picture. It made me think, though. We all have a team or a player, a shirt, or a jersey. We are all a fan of something. But when we come into a courtroom for a criminal trial, we are all on the same team and rooting for the same thing—the presumption of innocence. With her permission, I often show that picture she sent me during jury selection in my explanation about the presumption of innocence. Jurors get it.
The analogy of wearing the presumption-of-innocence glasses works, too. We have all heard this analogy. As with the jersey, in a criminal trial you wear the presumption-of-innocence glasses unless there is cause to remove them. When a piece of evidence is subject to two different interpretations, the presumption of innocence says it falls on the side of the defense. You see the version favorable to the defense.
And think about how different our world would be if we all presumed everyone innocent in day-to-day life. If we all presumed the best in the strangers we encountered. If we smiled at them and didn’t automatically assume the worst-case scenario. We might all be happier. We might all help each other a little more. We might really see the humanity in each other. Wouldn’t that be a better world? That’s a world I want for my family and my kids. That’s the presumption of innocence applied in the real world. The presumption of innocence is how we should all live daily. That seems to really resonate with people.
However we choose to explain the presumption of innocence, let’s be sure to really explain it. Let’s all be sure to make certain the jurors really think about what the presumption of innocence means and how it apply it in their service. Our clients, and our system, will be better off because of it.
