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On presuming innocence

mckee

Trump thunders that the Democrats want to do away with the presumption of innocence and will be responsible when mothers and wives see their sons and husbands trashed by false accusations. Senator Collins claimed that Judge Kavanaugh was entitled to the presumption of innocence in the face of what she admitted was credible testimony from his accuser. Senator Durbin has been taken to task for his remarks that the presumption of innocence does not apply to this case.

The arguments abound that it is all a plot by the Democrats to take away a time-honored tradition of our American heritage, and that without it, one’s reputation could be trashed anytime a baseless accusation was made.

The Republicans have made a complete mish-mash of the argument, and they should all know better. Recent discussions indicate that there is considerable confusion over exactly what the presumption is and how it operates. Let us take a look at this subject under some bright lights.

Most of us understand the concept of evidence, and the concept that if one claims something is so, they must produce evidence of the claim in order to have it established and accepted as true. But what happens if there is no evidence? Under what circumstances can we get to a conclusion where we have to accept the existence of a set of facts without proof. How do we handle this?

The answer is with assumptions. In our every day lives, we assume all sorts of things just to get through the day. We assume the clock is accurate, we assume the bus will arrive on time, we assume the phones will work, we assume it is not going to snow in June. Our lives would fall apart if we had to have proof of all these propositions before taking any action.

A presumption is nothing but a formal assumption. In the law, we formalize this reality into certain rules of evidence and recognize presumptions all over the place. The presumption that property acquired during marriage is community property, the presumption of heirship of a birth during coverture, the presumption of due care, and so forth. These presumptions are not evidence. They stand in as substitutes for evidence when it is necessary to get to a conclusion that turns on some point where there is not actual evidence. Presumptions serve to enable us to accept as true the fact in question despite having no actual knowledge of it, and despite there being no actual evidence on point, in order to complete a legal process or reach a legal conclusion.

In the law, any presumption evaporates in the presence of actual evidence. The presumption becomes unnecessary and unwarranted, for if there is actual evidence on point, the truth of the proposition is to be determined by the actual evidence. In court, this is measured by the burden of proof. In a civil case, the burden of proof is either by a preponderance of the evidence – which means more probably true than not true – or by clear and convincing evidence, which is a higher standard. In court, the law does not accept mere possibilities as sufficient for proof; we say the proof must at least reach the standard of being more probable than not.

On the criminal side, in the absence of evidence, the law says an individual is presumed innocent. This presumption is not evidence and is not itself a fact, for we do not know whether the individual might be guilty of something or not. The presumption exists only in the absence of evidence and operates to prevent the government from obtaining a conviction, or even from filing charges, unless there is some evidence of guilt.

Just as in other instances, if there is any evidence available, the presumption of innocence disappears. Once there is evidence, the presumption is replaced by the burden of proof we impose upon the government in a criminal case. We say the government cannot convict the individual without proof beyond a reasonable doubt. This is a much higher standard than the civil standard.

The presumption of innocence does not mean the individual is actually innocent. The presumption is merely a rule that guides the court in processing criminal cases in absence of sufficient evidence.

If there is no evidence, the presumption prevents any charges from being filed. If there is some evidence, the presumption disappears, and the issue is determined on the evidence measured by the burden of proof. If the evidence is insufficient to meet the required standard of proof, the law treats it as though there was no evidence on point. If the defendant is found not guilty, it does not mean he is innocent; it merely means the government did not produce sufficient evidence to convince the jury beyond a reasonable doubt. There are many instances where a jury may actually conclude that a defendant is possibly guilty, or even probably guilty, but will not convict because they are not satisfied that proof is beyond a reasonable doubt.

What of the situation here, where Judge Kavanaugh was faced with the compelling but somewhat vague accusations of Dr. Blasey-Ford? The government is not charging him with a crime, so testing the sufficiency of the witness’s story against the specific elements required for the criminal charge is not involved. There is evidence. The testimony of the gentle professor is evidence. The law is clear that the testimony of a single witness is sufficient for the proof of any fact, so there is no presumption to apply. The question, then, does not turn on the presumption of innocence but rather on the burden of proof.

What is the burden of proof to apply? In a criminal case, the burden of proof would be beyond a reasonable doubt, but this is not a criminal case. In a civil lawsuit, the burden would be by a preponderance of the evidence; mere possibilities are not enough. But this is not a lawsuit.

The issue under examination is the constitutional duty of the Senate to advise and consent. The constitution does not say what the burden of proof should be in such proceeding, and to my knowledge and research, there is not a rule in the Senate Manual that would apply here. As such, the standard to be applied becomes a matter within the inherent discretion of each senator. Proof to some degree of probability is reasonable, but so too are mere possibilities, or intuition, or even hunches if the senator determines such to be sufficient.

The point here is that the presumption of innocence plays no part in this process. It is the burden of proof that matters, and that is up to the individual senator. It is up to the senator how the testimony of the gentle professor is to be evaluated against the evidence produced by the judge.

How high is the senator going to set the bar, and how much weight is to be given to the evidence that is on the table? These are all matters of discretion for the individual senator to apply in acting upon the constitutional duty imposed to advise and consent. The decision under senate rules should be a matter of individual discretion, left up to each the individual senator.

Instead, and from all appearances, the majority party has treated this case as a matter of partisan expediency and has dictated the result to its members. Senator Durbin knew exactly what he was talking about.

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