GateHouse Media
June 7, 2019
Has the presumption of innocence given way to the
presumption of “guilt?”
The concept of presumed innocence is not
specifically mentioned anywhere in the U.S Constitution - although a jury, or
judge, must presume an accused person innocent until proven guilty beyond a
reasonable doubt.
Although the presumption of innocence is an issue
for trial, the presumption of “guilt” pre-trial is a growing concern. In a
nation that incarcerates more people for longer periods of time than nearly
every other nation in the world, the concern is valid.
In this media-driven world with an endless news
cycle, men and women “accused” of a crime are vilified within hours of their
arrest or even before an arrest - without regard to the fact that the reporting
is based on mere allegations.
No one is entitled to the presumption of innocence
before trial begins. Scrupulous prosecutors are careful to affix “alleged” when
talking about a suspect. Defense attorneys are eager to point out that their
clients are innocent until proven guilty. NBC legal analyst Dan Abrams once
wrote in The Wall Street Journal, “Demanding that all of us presume every
defendant innocent outside of a courtroom is to demand that we stop evaluating
facts, thereby suffocating independent thought and opinion.”
Beyond the media, there are a growing number of
situations that appear to encroach on fundamental liberty rights before an
accused is adjudicated guilty. DNA collected from individuals after arrest,
rather than after conviction, is an example of over reach. Opponents say it is
unconstitutional and supporters say the measure would prevent violent crime.
The U.S. Supreme Court ruled in 2013 that police can
take DNA samples from people who are arrested, but not yet convicted of a
crime, and determine if the DNA matches any samples from unsolved crimes in a
national database. If the accused is later found not guilty, or exonerated in
some manner, his or her DNA is not removed from the database.
I wrote last week about bail pending trial. Those
who fight for bail reform argue that imprisoning individuals while awaiting
trial, which could easily be months or years in the future, is an egregious
civil rights violation and establishes a precedent that could be used to punish
or coerce someone accused of a crime.
Those who support a monetary bond system seem
satisfied that merely a strong suspicion of guilt is enough to set in motion
the punitive aspects of the criminal justice system. How about the movement in
many states to extend or repeal the statute of limitations for rape cases? Some
argue that rape is one of the vilest things a human being can do to another
human being and there should be no limit for prosecuting an alleged rapist. An
accused could face criminal prosecution based on allegations of rape that
occurred 50, 60 even 70 years ago. The statute of limitation has been around
since antiquity. As time passes, memory fades, witnesses die and evidence
disappears. The statute of limitations protects individuals from facing charges
under those hopeless circumstances.
Finally, a fundamental principle of criminal law has
long been that the government must prove a defendant’s criminal intent to
commit a crime. This legal protection is now being eroded as Congress continues
to churn out legislation in dramatic numbers. In the last quarter century,
there has been an onslaught of federal laws enacted that weaken the
government’s responsibility to prove criminal intent. The increasing number of
crimes and the absence of having to prove the willful nature of conduct is
alarming.
While the presumption of innocence is for trial,
judges and lawmakers alike should not make it increasingly more difficult for
an innocent person to protect his or her liberty interests and the right to
mount a vigorous defense.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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