Is Your Right to be Presumed Innocent Under Attack?

Wednesday, June 6th, 2012 at 5:00 pm Posted in Criminal Law

What if you were accused of a crime you didn’t do? Would you want it to be easy for the government to convict you and take away your freedom?

One of the fundamental principles that supports freedom in this country is the presumption of innocence. To put the principle of the presumption of innocence into perspective of just how important it is to our freedom and liberty, think about how devastating and tragic it would be if you were accused of a crime, arrested and convicted for something you didn’t do. As Americans we call this an injustice. Taking away someone’s liberty for something that he didn’t do – is intolerable.

Luckily for us, we have a court system that places a priority on preventing the wrongful conviction of an innocent person. As such, one of the first and most basic rules of this court system is called the presumption of innocence. If someone is accused of a crime, the acused is presumed innocent and the accuser (the government) must prove the accusation. The accused does not have to prove that he didn’t do it because he is presumed not to have done it. If the accuser cannot back-up the claim with enough proof to convince a jury beyond a reasonable doubt that the accused committed the crime, then the presumption of innocence remains intact and the accused remains free. Our constitution requires that we should all be presumed innocent of any conduct that would allow the government to take away our freedom. Yes, we want it to be hard to convict people. This is in large part is what makes us “free”.

However, over the past two decades there has been a rapid change in the way that the our community and the courts treat citizens who are accused of crimes. As courts get busier, and the public demands tougher law enforcement and sentencing, people who are accused of crime get treated less and less like they are presumed innocent.

The presumption of innocence is under attack. The police, the media, and the public can be quick to unfairly judge. Lawmakers, prosecutors and judges are under tremendous pressure from the public to be efficient and tough. The public seeks a sense of security by demanding tougher law enforcement, higher conviction rates and stiffer sentences. As such, if someone is accused of a crime, the courts are increasingly inclined to place restrictive devices like GPS monitors and home confinement bracelets on accused arrestees prior to any conviction and before they are allowed to be released on bond pending a trial. A case against an accused is often rushed along while the rights of the accused are subordinated to the governments need for efficiency.

I have personally seen the attack on the presumption of innocence play-out over the course of my career as a government prosecutor and a criminal defense attorney. I have seen police officers who want to close the case and therefore jump to improper and hasty conclusions. I have seen prosecutors fail to have the courage to throw out a baseless case because they would rather lose a trial (or maybe just pull off a fluky unjust win), rather than drop the case and get flak from their politician bosses. I have seen Judges sacrifice due process and judicial integrity in the name of efficiency and “docket control”. Sometimes a Judge is just afraid to make the tough decision to deny a warrant, or to throw out evidence, or to dismiss a case – for fear that they will be perceived as not being tough enough (and face opposition in the next election).

But perhaps the best evidence of the eroding presumption of innocence is what happens to innocent people who are arrested and then get their charges dropped or dismissed because there is proof positive that they did not commit a crime. Many times an accused can be arrested only to have no charges ever filed against him. Sometimes a Judge may dismiss a case. Other times a jury may find the accused to be not guilty. Amazingly, these individuals do not automatically get their record cleared. They have to seek to “expunge” the record. This can only be done in some cases and may take months to accomplish. It can only be done once in a lifetime (I guess because there is a presumption that if you have the misfortune of being wrongly accused twice in your life then you must have done something wrong?). Even if you do get your “record expunged”, your “mug shot” and information remains plastered on the Internet indefinitely. Worse yet, even if you are exonerated and get your record expunged, you STILL must disclose your arrest under certain circumstances or face criminal penalties for failing to do so.

So what is it that makes the police, prosecutors, judges, the media and the public so willing to overlook the presumption of innocence? Many things. But no matter what the cause, the rationalization is usually that the accused must have done something wrong. But this isn’t always true.

Even with a system that tries to avoid the injustice of having innocent people locked up for crimes they didn’t committ, innocent people do get wrongly arrested and convicted. Thousands of people every year are arrested and then have the charges dropped or dismissed. Many more thousands are found to be not guilty by juries. In the last 12 years, over 222 people have been released from prison after they served an average prison sentence of 13.5 years for crimes they didn’t commit. These people were ultimately released based on D.N.A. evidence that proved they were innocent. And this is only the number of people who had the fortunate circumstance of having D.N.A. evidence available. I actually heard a judge recently proclaim that 222 people being wrongly convicted is “insignificant”. Really? I bet it doesn’t feel insignificant to the 222 people who had to spend over 13 years in prison for a crime they didn’t commit. Calling the wrongful conviction of even one innocent citizen “insignificant” is dangerous thinking and a clear demonstration of a lack of appreciation for justice and the presumption of innocence.

How many more innocent people will get convicted for crimes that they didn’t commit If we marginalize the presumption of innocence? Do we want America to be a place where you can have have your freedom so easily taken away?

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