Thursday, August 7, 2008

Presumed dead

The presumption of innocence is dead. I am sadly, but firmly, convinced that the general public does not presume people accused of crimes to be innocent. This probably isn't news to any of you who practice criminal defense.

How often do people in jury selection indicate that they think the defense should put on evidence? That they would hold it against the defendant if s/he didn't testify? Happens all the time.

The general public thinks it can be used as evidence of guilt if the defendant didn't talk to the police. They think the mere fact that you were arrested means you must have done something. They think defense attorneys are just shady money-whores who would do anything to get their guys off. Or that public defenders are just bad lawyers who couldn't get any other jobs. They think they would rather err on the side of imprisoning an innocent person rather than allowing a guilty person to go free.

These people are our prospective jurors. No matter how much the judge or prosecutor tells them they have to presume the defendant innocent or that they can't consider the defendant's decision not to testify, they're not going to change their deeply-held views. They're just not. They will maintain their biases in the jury room, they will continue to view the non-testifying defendant through their perspective that a truly innocent person would testify to clear his/her name, and they will continue to lean towards conviction before they've heard one word of testimony.

So how do counter this? How do we convince the American public that it really is better to let 10 guilty men go free than to convict one innocent person? How do we convince them that there are legitimate reasons, completely consistent with innocence, for a defendant not to testify in his/her defense? How do we revive the presumption of innocence? We have to find a way, because courts aren't going to let us remove all of these potential jurors for cause.


Miss Conduct PDX said...

Oh dear. Haven't you noticed? Neither the prosecutor nor the judge believes in the presumption of innocence either.

I once had a long time judge tell me that judges hate the two word verdict. It's like giving them a steak dinner and then yanking the plate away.

Yes, I think the judge is more convinced of the guilt of the person sitting at the defense table than the jury is.

It's a horrible feeling when the jury does the right thing and then the judge spends a significant amount of time harranguing your client for being "lucky."

S said...

My favorite are those prosecutors who act like it's an insult when a defendant declines enter a guilty plea. Like it's a given that they're all guilty of something so it's just stunning to them that we would ever deny it.

Well, folks, sometimes the complaining witness is just a big, fat liar and the alleged crime never happened. Sometimes you just flat got the wrong guy. And, hey, sometimes, we just feel like holding you to your damn burden. But it's not a personal affront to you that we dare to question your proferred version of events.

Miss Conduct PDX said...

And, sometimes, the client did something, he just didn't do what was charged.

Or, sometimes, he just feels like a trial.

Erin said...

I have a "favorite" prosecutor who I will not name. I am sure she takes it as a personal insult whenever I dare to defend my client and file motions in support of that defense.

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