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.
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| 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.
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| 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.
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| 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.
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| 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.
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| 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”.
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| "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
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.
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| "Provided you have the cash" |
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!
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| 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
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.
