The Presumption of Innocence: An Exercise

I am going to begin my newsletter with a brief piece on the presumption of innocence. There have been tomes of legal scholarship on it, and this is by no means a treatise. Just simply an observation (which I hope to continue to share as part of my newsletter). I hope that these newsletter pieces give you a glimpse into my thoughts on trial lawyering and trial practice– both criminal and civil.

Because I have been so busy this week, it may not be Ciceronian, but rather a thumbnail sketch of a though I had this week. A client told me that the agents in his case “presumed me guilty.” He asked, rhetorically, “what happened to the presumption of innocence?” And I get compelled to answer in some way, so I’m doing it here.

The presumption of innocence is one of the greatest principles enshrined in our criminal jury trial system, yet rarely, if ever, have I seen a jury venire come in for trial ready to embrace it. Civil law, of course, has some parallels, but generally there the implicit presumption (even in hotly contested trials) is that someone did something wrong and that is why the jury is there. And when you represent the civil plaintiff, you like that presumption. Because someone did do something wrong to your client, or else you would not have brought the case. Litigating damages and allocating fault are the questions that I think most juries ask from the premise that “something happened.” But I’m focusing here on the presumption of innocence in criminal trials.

In criminal trials, that same premise– “something happened”– rarely, if ever, works in a criminal defendant’s favor. And that is because it goes hand in hand with the conclusion that “the defendant did it.” Yet the law tells jurors (and hence potential jurors who must follow that law) that they are to “presume the defendant innocent.” So how can we as trial lawyers get the jury to not only hear the presumption of innocence, but to follow it?

I am not the authority, but in trying over 50 criminal trials the past fourteen years, I think there is a simple exercise that can frame the presumption of innocence in a way that jurors can relate to it. And I’ll explain it here:

Close your eyes and imagine the one person in your life that is above accusation. The person who you believe to be the most honest, law-abiding person in your life. For me it would be my mother. I remember a time when I was a little boy and stole a matchbox car from the aisle of the local Kroger grocery store in Kingsport, Tennessee where I grew up. My mother saw me playing with it in the car on the way home. She drove me back and marched me right up to the cashier and return it, apologize to the manager, and promise to never steal again. Of course, that is just one example, but you get the point.

Find that person in your life, and some examples. And I want you to really feel why you believe that person is honest, trustworthy, and law-abiding. What is it in your heart and mind that makes you believe that?

Now take a minute, with your eyes closed, to see them– your “person.” It could be a family member. It could be a member of your church. It could be a neighbor. Actually see the instances that you’ve witnessed or know about that lead you to that position– that they are the most honest, law-abiding person you know. Don’t spend too much time on this. A few minutes at most. But when you have that person in mind, open your eyes and identify them by name. We’ll call them _______.

Well, if someone accused my mother of committing a crime, my first reaction would be “no way.” If they told me they had evidence proving her guilt, I would protest. I wouldn’t believe them. If they said, “we have eyewitnesses,” I’d say “they’re mistaken or lying.” If they said “we’ve got DNA evidence,” even, I might be afraid, but my heart and mind would instantly go to the first reaction that it had to be incorrect. There had to be a mistake. My mother is innocent.

Now look at the criminal defendant.

We don’t know him or her from Adam. He/she may look guilty. They may have tattoos. They may look “shady” or already look guilty to us. After all, “we are here because something happened.” Right? A crime was likely committed and this person is sitting in the “hot seat.” Many of us would naturally say “I know they got arrested for something.”

But now let us see _________ in that “hot seat.”

That’s what the presumption of innocence means. It’s not a natural feeling. In fact, I think the natural feeling that most jurors have in a criminal case is “they must have done it or else the cops wouldn’t have arrested them and the prosecutor certainly wouldn’t file charges against them.” These are natural responses and reactions that we all have. But the law– our Constitution– says we have to have a different reaction. We have to be skeptical of the prosecution. We have to start from a place of “he [or she] is innocent.” Not “not guilty.” But innocent.

There’s a reason they call it jury duty. It isn’t always fun. And it isn’t easy. But it’s the law. And I think so many criminal trial attorneys miss out on true opportunities to really ask jurors to feel the presumption of innocence, instead of simply nodding their head when the judge asks them “can you follow the presumption of innocence?” Many criminal defense lawyers miss this critical opportunity to frame the case for the jury before any evidence comes in– and ask them to really follow the presumption of innocence. And sometimes that can mean the difference between an acquittal and a conviction.

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