Tag Archives: voir dire

The Presumption of Innocence: Tough to Sell for a Hot-Button Issue

When you represent a defendant in a criminal jury trial, you almost always have to depend on the presumption of innocence instruction to give your case a boost. I know that I did. I was usually able to provide an alternative account of what happened, but with the presumption, the defense can prove a tough sell. So as a part of voir dire, I’d ask jurors about the presumption of innocence. Inevitably, jurors would affirm their agreement with the presumpution and agree to follow it. And, for the most part, I think that they did. But not always. Some issues could prove too instinctual.
In one case in particular, a misdemeanor no less, I thought that the State had a lousy case, almost laughable. In short, a student was accused of “harassing” another student, albeit one who as a well-known athlete. To my continuing regret, I became a bit arrogant about the whole thing. The persecutor in closing suggested that my client could have been like the crazed fan who attacked and stabbed Monica Seles during a tennis match. I was shocked. And then the jury found my client guilty and she spent some time in jail for the matter. (The judge’s sentence shocked me, too. There was no end to this.) I fear that the jury was led by a bias in favor of the athlete that overturned any sense of proportion and skepticism. The presumption seemed to have flown out the window. (By the way, my client did harm nor did she threaten harm to the alleged victim.)
I recount all of this because as lawyers we learn and then live the presumption of innocence and burdens of proof. Most people don’t think these thoughts nor live these principles. I find that burdens of proof and the presumption of innocence with their long pedigree in the common law actually work quite well for most situations in life involving uncertain facts and possible outcomes. But then I’m different, indelibly different, since I’m a lawyer, and a trial and appellate lawyer for over 30 years to boot. My mind is warped, even if in a good way (as I believe that it is about this issue.)
Feeling thus mostly alone in the world when it comes to issues like the presumption of innocence and burdens of proof, it’s a real treat to find a non-lawyer (I presume) who gives such an excellent and practical defense of these principles. These principles can and should apply in daily life as well. It’s nice to have such a sound defense at hand. Wes Alwan is a regular on the podcast The Partially Examined Life, a must if you like to hear a worthwhile (and sometimes humorous) discussions of philosophy and philosophers.
I highly recommend Alwan’s post on the allegations against Woody Allen.