The presumption of innocence exists in theory, not reality

By: Keith Findlay

Keith Findley is an assistant professor of law at the University of Wisconsin Law School, where he is co-director of the Wisconsin Innocence Project. He represented Steven Avery, subject of the “Making a Murderer” documentary, in the 2005 proceedings that produced DNA evidence to prove Avery’s innocence and exonerate him of a 1985 sexual assault conviction.

If, as the Supreme Court has consistently declared, the presumption of innocence is among the most fundamental principles in our criminal justice system, it is also among the most fragile.

The presumption is under constant assault from jurors’ natural assumption that if someone is arrested and charged with a crime, he or she must have done something wrong. It is also vulnerable to the media frenzy around high-profile cases, the fear-driven politics of crime, the highly punitive nature of our culture and the innate cognitive processes that produce tunnel vision and confirmation bias.

Indeed, research suggests that the presumption of innocence exists more in theory than reality. In studies, mock jurors predict a 50 percent chance of voting to convict — before hearing any evidence. Other research shows that while simulated jurors initially assign low probabilities of guilt, they abandon the presumption of innocence promptly as prosecution evidence is introduced.

[Why Scott Walker simply will not issue a pardon in response to ‘Making a Murderer’]

Given these natural inclinations, one would think a system built on the presumption of innocence would protect and reinforce that presumption. But in many ways, it does not.

Pretrial bail policies, for example, are not based on assessments of any likelihood of innocence or the need for innocent people to prepare for their defense, but solely on the risk that the (presumably guilty) accused might not appear for trial. On this score, the presumption of guilt accelerated in the early 1970s when notions of preventive detention — that is, complete denial of bail — emerged as part of the Nixon administration’s mission to control “criminals” before they committed crimes.

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4 responses to “The presumption of innocence exists in theory, not reality

  1. Given Keith’s preeminent position in the battle to bring some logic and reason to the subject of so-called SBS, it’s interesting, and disappointing, that he didn’t relate the lack of presumption of innocence directly to SBS cases. The defendant in an SBS case is presumed guilty, and they have to prove their innocence.

  2. Perhaps what is needed is experimentation in presenting past cases to mock juries to establish what works and what does not. Currently it is just guesswork as to why juries come to incorrect verdicts, why they convict when reasonable doubt exists.

  3. My brother has been convicted of sexual assult on a child with no evidence jus the accusation of the other person that happens to be my nieces daughter they did the report bout 9 yrs after they say the accusation happened. How can I help my brother..

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