One of our finest moments in court was hearing a tearful prosecutor whine, “Judge, I know he did it, I just don’t have proof.” Too bad, so sad. No proof, no foul.
So we were shocked to discover during the furor over Justice Kavanaugh’s confirmation how many people believe that the mere fact of an accusation constitutes proof. Not only the demonstrators in pussy hats scapegoating him for all the wrongs inflicted on women, but lawyers.
The most extreme example comes from an indignant Facebooker waving aloft her degree “from one of the top law schools in the country,” only to descend into hillbilly talk:
“Y’all need to delete the phrase ‘innocent until proven guilty’ from your lexicon until you are prepared to use it correctly. Seriously. Next one of you I hear blithely parroting this phrase in the wrong context, I might just have to whack you upside the head.”
This legal eagle (whose career is in public relations) explains that as a matter of law, women’s accusations of sexual misconduct are presumed to be true until the accused disproves them. A reminder not to rely on Facebook for legal information.
But all too often we’ve heard otherwise reasonable people assert that presumption of innocence applies only to criminal trials. As if it were a quaint courtroom custom, like the judge’s robe or the velvet cord separating the public from the bench.
The presumption of innocence is nothing more – or less – than the principle that the accuser has to prove her accusations. The standard of proof may vary according to what kind of proceeding it is, from “beyond a reasonable doubt” in criminal trials, to “more likely than not” in civil trials, to “some evidence” in prison disciplinary hearings, but the principle is the same: it’s for the accuser to prove guilt, not for the accused to prove innocence. It can never be fair to inflict injury on a person just because accusations were made, whether it’s a trial or a playground dispute. If even lawyers treat the presumption of innocence as irrelevant to everyday life, it’s pretty hard to expect juries to apply it in the courtroom.
There’s also the tenet that accusations made long after the accuser could have brought them, i.e., “sleeps on her rights,” should be disfavored. The purpose of statutes of limitation and the doctrine of laches is “to protect individuals from having to defend themselves against charges when the basic facts have been obscured by the passage of time; and to minimize the danger of punishment because of acts in the far-distant past.” This was an established precept even before psychological research demonstrated how thoroughly memory can be tainted over time. We now know that people not only forget what happened, but may sincerely “remember” what didn’t.
But legislatures have stood this principle on its head by eliminating statutes of limitations for sexual assault. The fact that the complainant said nothing for decades is now considered proof of how traumatic the event must have been, and therefore, of the guilt of the accused.
It’s up to reasonable people (which may or may not include lawyers) to insist on fairness, even towards – especially towards – people whose politics they despise. Sir Thomas More had it right when his son-in-law Will Roper argued that legal principles should be set aside when the cause is just:
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?
Yes, I’d give the Devil benefit of law, for my own safety’s sake!
― Robert Bolt