Matthew T. Mangino: Guilty until proven innocent
The presumption of innocence is one of the most overworked phrases in the criminal justice system. For all its fame and usage the presumption of innocence is not mentioned anywhere in the U.S Constitution.
Scrupulous prosecutors are careful to affix “alleged” when talking about a suspect. Defense attorneys are eager to point out that their clients are innocent until proven guilty. The presumption of innocence is more a rule of evidence than a rule of law. A jury, or judge, must presume an accused innocent until proven guilty beyond a reasonable doubt. No one is entitled to the presumption of innocence before trial begins.
Although the presumption of innocence is an issue for trial, there are a growing number of situations that appear to encroach on fundamental liberty rights before an accused is adjudicated guilty.
The U.S. Supreme Court ruled in 2013 that police can take DNA samples from people who are arrested but not yet convicted of a crime, and see if the DNA matches any samples from unsolved crimes in a national database.
Twenty-eight states and the federal government have enacted laws that provide for automatic DNA testing of arrestees. The 5-to-4 decision included a fiery dissent from the late conservative justice, Antonin Scalia.
“I don’t think that any person should have their DNA taken before they are convicted,” Washington State Representative Sherry Appleton told The Olympian. “In this country, you are innocent until proven guilty; it’s not the other way.”
In 2014, New Jersey voters approved a proposal to amend the state constitution allowing judges to deny pre-trial release to some defendants charged with serious crimes.
The constitutional amendment would affect defendants who are considered a danger, a flight risk or a threat to obstruct justice even though the defendant has not yet been convicted. In most states, a defendant can be denied bail only if facing a capital offense. Bail is to insure a defendant’s appearance for future court proceeding, it is not, nor should it be, punitive in nature.
Opponents argued that imprisoning individuals without bail while awaiting trial, which could easily be months or years off in the future, is an egregious civil rights violation and establishes a precedent that could be used to punish or coerce someone accused of a crime, according to the Times of Trenton.
In Pennsylvania, State Representative Ed Gainey recently proposed House Bill 655 which would eliminate the statute of limitations for criminal and civil cases of child sex abuse.
Gainey told the Centre Daily Times, “How can we put a limitation on the value of life?”
Under Gainey’s proposal a defendant could face a criminal prosecution based on allegations of sexual assault that occurred 50, 60 even 70 years ago. The statute of limitation has been around since antiquity. As time passes memory fades, witnesses die and evidence disappears. The statute of limitations protects individuals from facing charges under those hopeless circumstances.
Finally, a fundamental principle of criminal law has long been that the government must prove that a defendant had the criminal intent to commit a crime.
This legal protection is now being eroded as Congress continues to churn out legislation in dramatic numbers. In the last quarter century, there has been onslaught of federal laws enacted that weaken the government’s responsibility to prove criminal intent. The increasing number of crimes and the absence of having to prove the willful nature of conduct is alarming.
Andrew Weissmann, a former federal prosecutor told the Wall Street Journal, requiring the government to prove a willful violation is “a big protection for all of us.”
No one would advocate for making it easier for a batterer, rapist or killer to get away with a grievous crime. However, lawmakers should not make it increasingly more difficult for an innocent person to protect their liberty interests and the right to mount a vigorous defense.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino