The great presumption in criminal justice

The Law is full of strange words and odd concepts, and that part of the Law called the administration of criminal justice contains the strangest paradoxes of all.

Everyone - judges, lawyers, private citizens - knows that a person, no matter what crime he is accused of committing, is presumed innocent until proven guilty. At the close of a criminal prosecution the judge reminds the jury of this basic concept.

Indeed, some judges tell the jurors not merely that a defendant is presumed innocent, but that he in fact is innocent unless and until the government establishes his guilt beyond a reasonable doubt.

Some judges even instruct the jury that the indictment - the document containing the formal charges - is nothing but a piece of paper, a bare accusation. Then, noting the inappropriateness of the smoke-fire syllogism, they direct the jurors to disregard the indictment entirely. Some judges do not even let the jury take the indictment to the jury room.

All this fully complies with the United States Constitution and the constitutions of all the states. It also happens to ignore an undoubted fact: Of every 100 indictments, defendants plead guilty to 85. Of course, the 15 cases that go to trial result in additional guilty verdicts. That does not bear on the present point, which is that in 85 percent of the cases, an accused defendant flatly admits his guilt without the need of a trial.

Does this mean that the chance of a given defendant's having committed the crime for which he is standing trial is 85 percent? Obviously not. But it does suggest that the accusatory authorities - the police, the district attorney, and the grand jury - are at the very least bringing to justice many people who are criminals.

A defendant who pleads not guilty is not necesarily insisting that he is innocent. He is merely saying: ''You have accused me of a crime. Now prove - beyond a reasonable doubt - that I committed it.''

The structure of our fundamental freedom rests upon the rightness of that position. A defendant who knows that he committed the crime is morally justified in forcing the government to establish his guilt without the slightest aid from him.

And yet if the public - at least those who serve on juries - knew the 85 percent figure, they would begin hearing the evidence feeling that the overwhelming majority of accused people are guilty and that the prosecutors are doing a reasonably good job.

I am not at all suggesting the desirability of suppressing this information. Presumably, those district attorneys who have to stand for reelection would be happy to publicize it (particularly if their ''plea-percentage'' exceeds the norm).

But people generally believe that a defendant would not be in court unless he ''had reason to be there.'' As a recent poll shows, most people even believe that a defendant must prove his innocence.

If the plea record were fully understood, a court would have even greater difficulty than it does now in making sure that the burden of proof rests where the constitutions put it.

Consider the so-called affirmative defenses: self-defense, alibi, or insanity. In each, the defendant is not trying to prove something; he merely seeks to inject enough uncertainty to preclude the jury's finding him guilty beyond a reasonable doubt.

Yet the reality is different. A defendant who suggests that he was somewhere else at the time of the crime is really telling the jury that he will establish his whereabouts. The judge can emphasize as strongly as possible that the government must prove - beyond a resonable doubt - that the defendant was at the scene and that the defendant need prove nothing. Nonetheless, it is the defendant who calls witnesses to prove he was elsewhere. From that litigational fact alone the jury comes to feel that the defense bears the burden of proof.

The tendency to assume guilt is sometimes more subtle. Prosecutors, even judges, often refer to the person who reports a crime as ''the victim,'' instead of ''the complaining witness.'' Failure to recognize the distinction frequently makes it harder to remember that until the jury has spoken there is no victim, at least with respect to the defendant on trial.

When a defendant raises an alibi, will the jury hearing the government's chief witness repeatedly called the ''victim'' and knowing that 85 percent of indictments are in fact true be able to presume the accused's innocence? Or will the conclusion of guilt not await proof.

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