The Presumption of Innocence, “Sleeping on One’s Rights” and Fundamental Fairness

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 A Man for All Seasons

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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7 Responses to The Presumption of Innocence, “Sleeping on One’s Rights” and Fundamental Fairness

  1. Victoria Nelson says:

    This blog goes against the tide of current public opinion to make a very important legal point. Yet it fails to take into account that historically victims of rape by the powerful (and the unpowerful) have often been presumed guilty of lying or attempting blackmail or just plain hysteria. The destruction of their reputations in that same court of public opinion, as well as i nthe legal system itself, has been a great and completely understandable deterrent to timely reporting (aka, “sleeping on their rights”). Absent DNA, hard “evidence” is notoriously hard to come by given the usually private circumstances of rape. Many courts continue to privilege the perpetrators, as in the Stanford case in which a young man was actually witnessed by two people having intercourse with an unconscious woman lying in the street. As his father argued that “20 minutes shouldn’t affect a whole life,” the judge famously sentenced this middle class young white man to 6 months probation.

    It’s exactly the perception of the failings of the legal system to bring justice in these cases that has produced the huge pendulum swing toward presumption of guilt in the other direction. In some cases it may be unfair, but it represents a massive corrective that will not go away until the scales of actual legal justice become more balanced.


    • No question that rape victims have been – and continue to be – unfairly discredited by their families, the police, juries and courts. And we disagree with President Trump that a 36-year delay in reporting necessarily means it didn’t happen. But we don’t think the “believe-the-victim” movement is in any way a corrective. To coin a phrase, two wrongs don’t make a right.


      • Victoria Nelson says:

        They may not make a right, but the point is extrajudicial trial by public opinion in this area is going to continue until the legal system gets itself in shape.”Believe the victim” is a compensation against the long-time status quo of “Don’t believe the victim, don’t even investigate, and while you’re at it introduce her sexual background as ‘evidence.'” It may not be a corrective you approve of, but it is a corrective.


  2. Yup. “We execute people based on nothing more than this.”


  3. A blanket policy of believing absolutely every accusation would be unwise. We can all recall specific instances in which an individual simply made up supposed details of sexual assaults, as in the Duke lacrosse case. People lie; and they lie even about the most serious matters.

    But when multiple people have a version of the same story, the accusations become more and more credible. Regarding Bill Cosby, in order to take seriously his denials of having committed multiple rapes, we’d have to believe that scores of women who do not know one another somehow colluded to make up an elaborate tale. It makes much more sense to believe that Cosby is a serial rapist. (Cosby has in fact been convicted of one of his many acts of rape. But this argument was valid even before the criminal charges were levied.)

    With Kavanagh, there was some corroboration of the allegation of rape. They wouldn’t be nearly enough to convict someone; but, of course, it wasn’t a criminal trial. It wasn’t an administrative proceeding. It was a Senate hearing to confirm a nomination to the post of Supreme Court Justice. Do not confuse the manner in which society determines whether an individual deserves punishment with the manner in which society determines whether an individual merits a high office. Here the standard for evaluating allegations of impropriety of any kind are not “reasonable doubt” or “preponderance”; we can characterise the appropriate standard as something akin to “where there’s smoke there’s fire”.

    Even if an alleged victim’s statement about having been raped by this nominee, combined with a roommate’s declaration of the nominee’s propensity for drunken violence, do not convince you that the nominee definitely committed this rape, these factors must cause any honest observer to concede that he might have committed this rape. And that doubt is enough to disqualify someone from sitting on the Supreme Court. (Indeed, if conclusive proof existed that showed that Kavanagh did not commit the rape that he is accused of, his demeanour and his statements alone would establish his unfitness.)

    The concept of “the presumption of innocence” is absoultely essential to the adversarial criminal process. It is also a good ethical principle on which to base one’s own personal conclusions, because it is rationally sound; Carl Sagan famously said that extraordinary claims require extraordinary evidence. But a Supreme Court nominee is entitled to no such presumption, as that nominee himself or herself has the responsibility to demonstrate fitness for the post. This nominee failed spectacularly at that task; yet he was rewarded by dishonest collaborators who abrogated their duty to act in the best interest of the nation.

    Holding a nominee to the Supreme Court to a high standard in no way undercuts the appropriate applications of the presumption of innocence, and only strengthens the concept of fundamental fairness.


  4. Rojas says:

    “It may not be a corrective you approve of…..”
    Begs the question, if the corrective is defective is it effective?

    “They may not make a right, but the point is extrajudicial trial by public opinion in this area is going to continue…”
    Return with us now to those thrilling days of yesteryear.


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