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.
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.