Innocent until proven guilty? Nope
There’s a Latin maxim that says ei incumbit probatio qui dicit non qui negat (“the burden of proof is on the one who declares, not the one who denies.”) One of the most sacred tenets in the law is the presumption of innocence. Anyone charged with a crime is presumed innocent and it is the prosecution who must prove guilt beyond a reasonable doubt. The defendant isn’t obligated to even put on a defense.
But this legal fiction is being used and abused by Donald J. Trump. In an interview this week with the Associated Press Trump defended the Saudis against accusations of being involved in the murder of journalist Jamal Khashoggi saying, “You know, here we go again with, you know, you’re guilty until proven innocent. I don’t like that. We just went through that with Justice Kavanaugh.”
The idea of a defendant being innocent until proven guilty only applies in a court of law. It’s an important part of our jurisprudence but it is just that: part of our jurisprudence. The public is under no obligation to respect innocence until proven guilty beyond a reasonable doubt. The court of public opinion operates by different rules. In the court of public opinion, hearsay is admissible. Prior bad acts are admissible. Illegally or improperly collected evidence is admissible.
In the O.J. Simpson trial, most people thought him guilty before his trial was over. The law did it’s job by granting him a presumption of innocence and requiring the state to prove him guilty beyond a reasonable doubt. But the public was under no obligation to assume Simpson innocent. Knowing his history of domestic violence, I believed him guilty from the very beginning.
Judge Brett Kavanaugh was not on trial, so there was no legal requirement to presume him innocent. He was being interviewed for a lifetime job. Still, I think people did afford him that presumption. What made the majority of the public believe Dr. Christine Blasey Ford was her credibility. She had no reason to lie. He did. She told people of the incident years before Kavanaugh was nominated for the Supreme Court so she was clearly not part of any conspiracy. Her passing a polygraph and his refusal to take one, her calling for an FBI investigation and his refusal to call for one plus his inaccurate and misleading statements regarding his past drinking and activities in school damaged his credibility. It’s not surprising polls show Americans believed her over him.
But it was a job interview. If you submitted an application or resume for a job, the employer could google your name, peruse your social media habits and the kinds of things you post in online forums. On that basis alone, he or she may decide to pass on you. They’re under no obligation to presume you innocent. They can merely take in the information and render a verdict.
When twenty women come forward accusing Donald Trump of sexual misconduct, the public doesn’t have to assume him innocent. People rightly judge his credibility and find him to be a pathological liar. They factor in his history of womanizing, saying crude things to women, saying inappropriate things about his own daughter and his sleazy conversations on the Howard Stern radio show. They remember the Access Hollywood tape where he bragged about being able to grab women by the pussy and being able to get away with it. They recall him saying that he kisses women without waiting.
After weighing that evidence, it’s not surprising that the majority of the public finds him guilty.
In October 2016, before a debate with Hillary Clinton, Donald Trump sat at a table with women who’d accused Bill Clinton of sexual assault. Trump and his minions didn’t extend any presumption of innocence to Clinton. And they didn’t have to because the court of public opinion operates independently of the law.
So when Jamal Khashoggi is seen on video walking into the Saudi consulate in Turkey and never coming out and Turkish officials say they have audio of his torture and murder and they identify the passports of the kill team that flew to Turkey to carry out this horrendous act, we’re under no obligation to presume the Saudis innocent. We look at what Turkish officials have said and then we look at the behavior of the Saudi government and the pathetic response from our own government and I think the public renders a well-considered judgment.
All defendants charged with a crime deserve a presumption of innocence, a vigorous defense and for the burden of proof to be on the prosecution. But as I’ve stated, the court of public opinion operates on a different plane with different rules and it doesn’t require a trial or courtroom. Let’s not confuse the two.