font-family: 'Arizonia', cursive; Michael Stichauf - "As I understand it now...'til it changes": Our Justice System's "Wonderful" Presumption of Innocence

Wednesday, July 16, 2014

Our Justice System's "Wonderful" Presumption of Innocence

I have found that it isn't so much, what you say, as how you say it. I added the quotes in my title in order to convey facetiousness, as well as my feelings of disillusion and disenchantment with the United States Criminal Justice System. People can't see you "roll your eyes" when they are reading something that you've written. Now a days, I roll my eyes every time I read a story of "prosecutorial misconduct", "police malfeasance" and "wrongful convictions". The main reason for my disenchantment has to do with one of the basic tenets of common law- “The Presumption of Innocence”.

America had long been held up for praise for its Criminal Justice System since the creation of our Constitution. The founding fathers took the best parts of the British system, added some ideas that they felt would make our new system better and blended them into the system of justice that America has been using since 1789.

The Beginning

Over the centuries, systems of justice have been crafted from the whims and fancies of the Tyrants who happen to be in power at each particular time. Most of these "systems of justice" actually never came close to resembling "the administering of deserved punishment or reward" (Dictionary.com) in the sense that modern societies have come to understand. "Justice", to a Totalitarian regime, is the punishment and destruction of any and all opposition to their power. Yes, they had your basic mainstay laws that dealt with stealing, violence and murder but their main purpose had always been geared towards exterminating their competition or their enemies, real or perceived. 

Cain and Abel
In most regards, civilization has come a long way since it first realized that creating a system of justice was paramount to the survival of society. It's simple human nature for some individuals to want to take advantage of, or hurt, other individuals. If you are a "Creationist", this basic human instinct is evident from the very beginning as evidenced in "Cain and Abel". If you are an Evolutionist, there have been plenty of examples of violence being committed from the many archaeological digs that have been undertaken over the years. Some of the oldest bones of skeletons that have been unearthed have definite signs of violence visited upon them. 

Initially, justice systems dictated crude and barbaric penalties for crimes that were committed. They operated from “an eye for an eye” perspective. As societies progressed, brutal punishments evolved and became less harsh to represent the type of societies that the citizens wanted their governments to help craft. Yet, in many Islamic systems, they still deal in barbaric, inhuman physical punishments for many different transgressions. These are the types of systems that refuse to change and refuse to accept basic human rights into their societies and systems of justice. This is where America became a leading force in government and justice.

When the founding fathers designed the U.S. Constitution, they wanted to keep many of the ideas that they brought with them in regards to the English form of government and system of justice. At the same time, they wanted to design a system of government that included many ideas that they thought would make their government better. Of extreme importance, was a set of guarantees that would ensure the citizen’s rights to “Life, Liberty and the pursuit of Happiness”, put forth for one of the first times in “The Declaration of Independence”. The answer that the founders came up with was what we now call, “The Bill of Rights”. These were rights that they considered most important to the citizens and that the Constitution would guarantee. Although, not a new idea at the time, it was an enormous leap forward for the citizenry of a country to have their rights protected, by the government, from the government. 

Magna Carta 1215
For centuries, Kings held the power of life and death over their subjects. All that changed with the signing of “The Magna Carta” in June of 1215. This became the first time a King of England had his powers over his subjects, curtailed. Specifically, it required King John to "accept that his will was not arbitrary- for example, by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land." (Wikipedia). "The Magna Carta" set the precedent for constitutional law from then on. Taking the concepts of Constitutional Law and Common Law and incorporating them into the United States Constitution, the founders created an atmosphere for the citizens to feel confident in their government and their rights. 

The Presumption of Innocence

Considered as the most important concept in the U.S. System of Justice, "The Presumption of Innocence" is a common law mainstay that can be traced as far back as the second or third century in Roman law. It is considered the rock upon which any legitimate system of justice is anchored. Without this monumental concept, a citizenry has no hope for an honest trial and a fair judging of their case.

Justinian I
One of the earliest mentions of the concept of “Presumption of Innocence” can be seen in Roman law. In the sixth century, “The Digest” was compiled under Emperor Justinian I, which was a compilation of all Roman laws up to that point. “Proof lies on him who asserts, not on him who denies”, is believed to come from the jurist Paul (Wikipedia). As we moved through the centuries, the theory remained relatively intact and untouched in its concept until it became an accepted theory of Common Law. It is at this point that “The Presumption of Innocence” finally starts to be written into the Constitutions of other nations. In the U.S. Constitution though, there is not a literal statement anywhere, which includes the phrase, “The Presumption of Innocence”. Rather, it is implicit in the “Bill of Rights” (five and eight) and in the guarantees of the fourteenth amendment.

The Amendments

The “Fifth Amendment” to the U.S. Constitution is referred to as the “Due Process” Amendment. It specifically protects citizens against unfair treatment during the legal process, hence, “Due Process”. With the phrase, “...nor shall be compelled in any criminal case to be a witness against himself”, the amendment says that a person cannot be forced to take the stand to be questioned by the prosecution. This is where the implication is; if he is considered innocent, he cannot bring evidence of said innocence because there is no evidence where there is no crime. It’s similar to the concept of not being able to prove a negative.

Fifth Amendment
Another way of looking at this is that the U.S. Supreme Court has stated that, “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” By allowing this type of protection, the Supreme Court affirmed that there was an implied “Presumption of Innocence” in the amendment by admitting that even innocent individuals can become tricked into supplying, what could be construed as, evidence of guilt against them.

Ernesto Miranda of
"Miranda V. Arizona"
Further evidence stating that there is a “presumption of innocence” comes from the Miranda case, brought before the Supreme Court. Mr. Miranda signed a statement confessing to a crime, yet, it was overturned because he wasn’t advised of his rights against self-incrimination prior to his police interrogation. Basically, the police never told Mr. Miranda that he had every “right to remain silent” when they questioned him. This rests on the theory that an innocent person who hasn’t committed a crime (hence, innocent), didn’t have the “burden of proof” to affirm his innocence. That “burden” applied to the accusers.  An innocent person doesn’t have to prove his innocence; therefore, he has the right not to say anything, which forces the accuser to find evidence of guilt outside of what an individual says.

The Eighth Amendment further guarantees "The Presumption of Innocence” for citizens. It states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through this amendment it’s implied that, because an individual is first and foremost “presumed innocent”, he shouldn’t be overly burdened through “excessive bail” because someone or some institution accuses him of wrongdoing. A prosecutor requesting excessive bail is assuming that the defendant will try to elude justice therefore, he is assuming that the defendant is guilty, justifying the fear of his “flight from justice”. Consequently, requesting a bail that is so high that the defendant can’t possibly post it, removes "The Presumption of Innocence” from the accused.

As you read the Constitution and the points that I’ve made above, you truly understand why the American System of Justice was so widely respected. The founding fathers tried to give the citizens of the United States as many protections as possible in order for them to feel safe in their existence and they succeeded. Yet, as the years have progressed, our System of Justice has let us down. As my faith, and the faith of others in our Justice System declines, you have to ask the question; “What is it that is causing this loss of faith in the American System of Justice?”

Problems Securing The
"Presumption of Innocence"

As with everything in life, we are never judged by our motives– only our actions. Any country in the world can pay lip service to the fact that "The Presumption of Innocence” is incorporated into their Justice System. The proof as to whether this is really the case is in how each country treats their detainees...their actions. We know that in Totalitarian regimes, there is no “right to remain silent” or no restrictions on the amount of bail required to free an individual prior to their trial. In most cases, there is no bail because the accused isn’t getting out. Torture is the primary weapon used to coerce confessions from individuals. These are the actions, or lack thereof, which are proof that there is no “Presumption of Innocence” in a particular country’s system.

Comparatively, the American System of Justice is also judged by its actions and not its motives. When you look at the “Due Process” amendment and the accused’s right not to take the stand, we start to see a problem. Human nature being what it is, people start to question an individual's innocence when he doesn’t want to take the stand. Everyone would like to see an individual stand up to the charges against him and answer the questions that a prosecutor would have for him. When that doesn’t happen, people start to wonder what that individual has to hide. Again, this is human nature. So many people have been brought up to believe that if you have nothing to hide, you shouldn’t have to worry about being questioned. Yet, anyone who’s ever watched any of those reality TV shows like, “The First 48” know just how easy it is to trip someone up during any line of questioning. I can’t tell you how many times I’ve watched an episode where the police are really tearing a story to shreds, and it turns out that the person who they’re querying ends up being innocent.

I recently watched a lecture by a man who was a law school professor and criminal attorney who spoke about the “right to remain silent” issue called, "Don't talk to police" (click title to view video). I’ve never seen a better advocate for this right. What this man did was to show you just how easy it is for anyone, let alone a trained interrogator (police), to take someone’s story and turn it around against them. I know there are honest police officers who do their best to put someone, who they honestly believe to have committed a crime, behind bars. Yet, they must realize that they are not God and that’s the reason for this “Right”.

"Old school" detectives
questioning a suspect
As much as the Supreme Court has given us “Miranda” and the Constitution is set up to protect the accused, our system of justice is still failing us and it’s evidenced every time you hear about a defendant being coerced into a confession. The officer in the video (link above) tells of a tactic that he’s used to get individuals to actually write out their own confessions. He tells them that the people who they’ve stolen from (for example) are really upset! Mind you, he’s saying this while the accused is still trying to proclaim his innocence. After a couple more exclamations of innocence he says, “Well, that’s fine but I think that it will really look good and favorable to you if the judge sees that you’ve really regretted stealing from these people and there’s a good chance that he will rule favorably for you.” The accused says, “Well, what do you mean?” The officer goes on to tell him that he thinks that he should write the victims a letter of apology. It still amazes him how many times this technique works and he actually gets the suspect to write his own confession, all the while, proclaiming his innocence. You hear so many stories about this very thing happening to defendants who, we find out years later, were actually innocent. Because they were able to tell themselves that they were as smart as the police or they were innocent and they had nothing to worry about, they were tricked into actually confessing to a crime that they never committed.

What also seems to have happened in our justice system over the years is that people, especially police officers, have become jaded. I’d be hard pressed to tell you of any of the officers who I’ve met over the years, who weren’t jaded. Maybe having to deal with some gruesome stuff, over the course of their careers, made them that way. Unfortunately, what comes along with that jadedness is also an attitude of, “guilty UNTIL proven innocent”. Soon enough, just about anyone they encounter, during the course of their shift, is guilty of something, one way or another. What this does is skew their judgment. They jump to conclusions without prior proof or they take the first person suggested to them and decide they have their case. What makes it especially easy for these police officers to behave like this is if they happen to have a suspect who has been in trouble prior to their incident. This, again, is where "The Presumption of Innocence” goes out the window. Officers are all too often of the thinking that once a criminal, always a criminal. If, for example, an individual gets stopped because an officer thought that he was acting suspicious, the officer will usually wait until he’s run the suspicious parties background before he decides on a course of action. If the suspicious party has a background, the officer will definitely search the individual as well as making sure he has a credible “probable cause” scenario that he can justify in court. On the street, the citizenry has lost the “presumption of innocence” with most of our officers.

Ignorance of their Rights

People don’t seem to understand that our system is set up to protect them, as long as they let it. By not talking to the police, asking for an attorney and realizing that the “burden of proof” is on their accusers, they are actually letting the “system”, which was set up to benefit them (the accused), work in their favor.

As much as the system is set up this way, people do not let it help them! One of the reasons is the way we were raised. As children, our parents told us that the policeman was our friend and as a child, they were. I specifically remember my Mother telling me that if I ever got lost, I should find a policeman right away. Consequently, it became ingrained in us, as children, that the policeman was always “right”. We were never told to be careful and NOT to talk to the police. Once I became an adult, I became aware of the many situations in which the policeman was the “bad guy”. The first time that I was ever told that I shouldn’t EVER talk to the police was in my high school government class. I had a teacher who, years before, had been arrested on a serious charge, which he didn’t commit. Unfortunately, he didn’t follow his OWN ADVICE and remain silent. This almost cost him his freedom! From that point on, he told every one of his classes about the “right to remain silent” right in our Constitution.

In many cases, people are told by the police that they just need them to come to the station to answer some questions. They tell them that they aren’t a suspect but they need to ask them questions. In fact, one of the tactics that they’ll use is to tell them that they aren’t a suspect but they need to ask some questions JUST TO RULE THEM OUT. Once the officers get a person into that interrogation room and the individual starts answering questions, they bury them. There are numerous stories of individuals, after realizing that they’ve made a big mistake, asking for an attorney and the police continuing to interrogate them. Because what happened in an interrogation room was always the police officer’s word against the word of the accused, trying to get justice for someone whose rights were violated by the police not stopping the questioning was slim to none! I know that on these reality shows, once an individual asks for an attorney, the police stop questioning. Well, that’s ONLY happening now because of cameras being required in interrogation rooms because of the numerous instances of police malfeasance and brutality in the past. This is one of the changes made to help people, accused of crimes, maintain their rights.

More changes need to be made. If the “rights for the accused” are one of the
"Provided you have the cash"
foundations upon which our justice system is based, then every attempt must be made to maintain these rights and to help an individual through the process. The right to an attorney is such a huge advantage to an accused individual that it should be mandatory that the police cannot interrogate a person without an attorney present. An accused’s right to a fair process, “Due Process”, “...the legal requirement that the state must respect all of the legal rights that are owed to a person”, initially hinges upon representation by an attorney. That being the case, the accused should be granted an attorney from the very beginning. Police officers should not be allowed to interrogate an individual without an attorney present, period! I understand that people will then surmise, “If that’s the case, no one will ever agree to be questioned by the police”. What’s wrong with that? It is one of our individual rights. Many individuals DON’T KNOW WHAT THEIR RIGHTS ARE! That being the case, and if the United States is committed to providing the accused with every one of their rights, then why not make sure that they have an attorney present from the beginning? It isn’t going to be a question of money because every individual eventually gets a court appointed public defender if they can’t afford a private one. Let’s just appoint them earlier than we normally would.

The Road Ahead

We face troubling times ahead in our United States Criminal Justice System. Because of the wars in Iraq and Afghanistan, our police departments have become extremely “militarized”. That is troubling. The Corrections Industry is becoming larger every day. Each and every prison is over-crowded, including the county jails and it’s only getting worse. Consequently, the Corrections Industry has become big business. It behooves a prison to keep an inmate for as long as they can because the state that they are in, reimburses them for each day they have to house them. Even more proof that it’s become big business is the fact that there are companies dying to build their own private prisons. This experiment has been tried in some states of the Union. In Texas, there have been some horrendous human rights violations actually caught on camera! Even one violation would be one too many but there have been many violations and that’s ridiculous!

Their vision of America doesn't
include the "less fortunate"
"The Presumption of Innocence", being the rock upon which our system is based, has been under attack for quite some time. Too many individuals are sitting in jail today because they haven’t known their rights. As far as I’m concerned, we haven’t protected them. When a society starts to divide into two separate entities; the “rich and powerful” and the “poor and disadvantaged”, it becomes easy to understand why there are individuals who are willing to ignore the problems of slowly losing “The presumption of Innocence” in our criminal justice system. The individuals in charge are the “rich and powerful” and they could care less about the “poor and disadvantaged”. By sweeping these disadvantaged individuals into prisons, the powerful are one step closer to achieving their goal of what society should look like in their mind. Tossing more of the “less fortunate” into prisons creates more jobs for construction companies, correction’s officers, parole agents and police officers. We must come to a solution to this problem because, as many people have stated; you can judge a society on how they treat their accused.

“The Presumption of Innocence” is the most dynamic principle that any society
can incorporate into, and use as, a foundation for its system of justice. Without it, no citizen has a chance at a fair hearing of the charges against him or her. Yet, that being said, human nature creates an almost impossible task for anyone willing to sit on a jury and decide the fate of any individual charged with a crime. The way we are raised and the manner in which information is imparted in our society today, it’s nearly impossible for anyone to have an attitude of “The Presumption of Innocence” towards an individual who is arrested. Through the newspapers, TV news and the Internet, we see the stories of those arrested and charged with crimes yet, all the while, the information supplied is being analyzed by our brains. “The Perp Walk”, as referred to by the press, is a “money” shot they hope to get because it sensationalizes a story. Unfortunately, these “Perp Walks” and their accompanying stories start the process of creating a feeling of guilt in the viewer’s mind that there is no possible way to stop. It is simple human nature. Our goal must be to not influence possible jurors, at all costs. I understand that we’ll never get rid of the news but every effort MUST be made to give the accused the closest thing to “The Presumption of Innocence” that is humanly possible. 

One last thought on this important issue. I’m not sure that there is an answer that will totally solve this problem, that when all is said and done, comes down to human nature. After years of being told that the police are there to protect the “good people” from the “bad people”, we’ve been indoctrinated into believing that anyone who is arrested must be guilty, why else would the police arrest them? After all, my Mother told me that the police would protect me, right? Consequently, when the police department makes that secret phone call to the press telling them they will be transporting the "Perp" at a specific time, the whole viewing public sees the “accused”, clad in hand-cuffs, ushered into a police car, looking every bit the guilty suspect that the police say they are. After years of conditioning, along with human nature being what it is, I find it impossible to believe that anyone can say they are able to judge, said accused, beginning with the state of mind that they are innocent until proven guilty. The human brain doesn’t have that capability. Fortunately... or unfortunately, depending on how you look at it, this is the system we have built. It’s a good system. It’s the best possible system humanity has designed to date. Yet, it’s administered by people and that’s the “wildcard”. Let’s continue to refine it and continue to make it better. Remember, we are not being judged on what our Constitution says about how to treat our accused. We are being judged on what we actually do to treat our accused! History will not judge us on what our intentions were. History will judge us on what our actions showed.

And that’s, “As I Understand It Now...’til It Changes”
Michael K. Stichauf- Writer.