Innocent until proved guilty

`I'M a stake-out artist,'' the reporter said. ``I'm the guy who waits outside the courthouse and shoves a mike under the defendant's nose while his lawyer yells, `No comment,' and my cameraman grinds away.'' ``Sure,'' he continued, ``you have to refrigerate your feelings. But I figure we're dealing with people who have presumably done something wrong, and the public has a right to know.''

Funny, the judge thought to himself. Here is the news industry, looking at a fellow on his way to trial and seeing a guilty man, even before the evidence is weighed. Whatever happened to the presumption of innocence?

Nationwide, about 85 of every 100 people formally accused of a crime ultimately plead guilty. Statistically speaking, one might plausibly argue that the odds heavily favor the factual guilt of any given defendant.

Our justice system, however, does not speak statistically. It regards every defendant as an individual absolutely entitled to individual consideration.

The United States Constitution requires that the court - the judge - interpose itself between all of society and the lone defendant, if that should be necessary to ensure that the process of determining this particular person's culpability remains fair.

Although this mandate is fundamental to the Constitution, the public and its representatives (political and journalistic) often find it hard to accept.

``Why is it,'' a man asks the judge, ``that the courts so vigorously protect the defendant's rights? Don't victims also have rights?''

The honest, unpopular answer: not in the sense of interests that the courts - as opposed to the legislature/executive - are commanded to protect.

A criminal trial is designed to determine whether the government has proved beyond a reasonable doubt that the defendant has committed certain acts, and that when he did, he had a particular state of mind.

By a long-accepted constitutional principle that separates us from many totalitarian modes of determining guilt, our trials start with the assumption that the defendant is innocent, that the government has - inadvertently or by design - accused the wrong person.

The purpose of the trial is to make sure that when overcoming this presumption, the government at all times behaves fairly. By the oath of judicial office, the judge is responsible for holding the prosecution to the constitutional standard, in gathering the evidence, in presenting it at trial, and in persuading the jury.

The whole focus of the criminal-justice procedure is therefore the defendant and, more specifically, the establishment of his guilt.

The very label we put on the case itself reveals our procedural disinterest in the victim: ``The State v. Defendant''; ``The Commonwealth v. Defendant.'' Still more significant: ``The People v. Defendant.''

Crime is an act against an individual, but an offense against everyone. Unlike a civil wrong, redress is not a matter personal to the injured individual. The state pursues the criminal-justice remedy to vindicate everyone, not simply to benefit the victim.

A victim may be (and frequently is) entitled to society's tangible assistance: physical, psychological, and fiscal. The right to concern and assistance, however, is not, because constitutionally it cannot be, an element of criminal justice.

The Constitution presumes every defendant innocent and requires the courts to enforce that presumption; it leaves the political branches of government to resolve the victim's presumption of injury.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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