The burden of proof is on the one who declares, not the one who denies.
– The Digest of Justinian (22.3.2)
You are shopping in a store. An employee accuses you of shoplifting. You are summoned to court. The judge says, “Prove your innocence beyond a reasonable doubt.” You are unable to prove a negative. The store employee does not even testify. You are convicted of shoplifting. It is on your record for life.
Wait … what?
I have just described a criminal justice system based upon the presumption of guilt. Such a system is inquisitorial and directly contrary to basic principles of a free society.
A person accused of a crime in America, however, is presumed innocent until proven guilty beyond a reasonable doubt. That is the ideal. But is it the reality?
In practice, the presumed innocence of the accused often is overlooked by Americans because of fear and anger, especially when the accused is charged with a particularly heinous crime. American judges have the specific and non-delegable task of protecting the accused’s presumed innocence. Put another way, the presumption of innocence and other rights of the accused are only as strong as the judges who enforce them.
However, and this is where it becomes extremely difficult, a judge must balance two competing interests, both of which are entirely valid. It is the perennial dilemma of individual rights versus the rights of the community as a whole.
The accused person’s right to presumed innocence must be balanced against the community’s right to be safe from criminals.
The first stage in a criminal proceeding is the arraignment. An officer or detective already has submitted an affidavit of some sort outlining or summarizing the available evidence against the accused for the crime(s) charged. The judge reviews the affidavit or criminal complaint and normally enters a plea of not guilty on behalf of the accused. The judge then sets conditions of release, ranging anywhere from release with conditions, to release with bond, to a no-bond hold.
Should a judge err on the side of the individual’s presumption of innocence and liberty interests? Or on the side of protecting the community?
If a judge releases the accused, how can he or she be certain that the accused will not abscond or harm someone? Predicting future behavior is not a science. Decisions involving pre-trial conditions of release are akin to walking on the edge of a razor blade. There is very little room for error.
And if a judge requires a bond in every case, or simply incarcerates every person accused of a crime until trial, what does that say for the presumption of innocence? It says that the presumption of innocence is a farce, an illusion, a lofty ideal but not a reality.
So how does a judge decide?
There is no magic answer. The judge must try to predict future behavior based on all available information about the accused, including criminal history, employment history, ties to the community and substance abuse and/or mental illness, if any.
Essentially, a judge must make life-and-death decisions with limited information about the crime and limited information about the accused and his or her background. And these decisions must be made quickly after an accused has been arrested. If the judge delays, the presumption of innocence is denied as the accused remains in jail. If the judge acts quickly and releases the accused, the community may be put in danger.
Conditions of release decisions are some of the most difficult decisions I have had to make as a judge.
When someone actually has been convicted of a crime, then the public’s right to be protected becomes much more significant when balanced against the convicted individual’s interests. But that is a separate issue with different considerations.
In the final analysis, why do we even bother with a presumption of innocence? Why not keep an accused in jail until trial?
Because, simply put, such a system would be repulsive to our inalienable constitutional right to freedom. We do not take someone’s liberty away solely on the basis of accusations.
Most Americans, I believe, support the presumption of innocence. Sometimes, however, it is hard to accept, especially when “we all know” the accused is guilty. Often, when judges afford the accused the presumption of innocence, the public becomes frustrated with the judicial system. That is totally understandable.
In the final analysis, however, the American judicial system is one of the best legal models ever crafted, and the presumption of innocence is one of the supporting pillars.
Judge Daniel E. Ramczyk is a judge of Bernalillo County Metropolitan Court. Opinions expressed here are solely those of the judge individually and not those of the court.