The presumption of innocence is one of the most important principles in the American criminal justice system. Although the popular phrase “innocent until proven guilty” does not appear verbatim in the US Constitution, Bill of Rights, or amendments, the protections, and rights enshrined in the Fifth Amendment were an important first step in protecting suspects and building a more just legal system. As Supreme Court Justice William Douglas asserted, “The Fifth Amendment is an old friend and a good friend. It is one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized.” When a defendant has been arrested and indicted, the indictment is not evidence of guilt, but rather a charging document. In the legal system that the Founders envisioned, individuals were considered innocent until proven guilty, and it was the responsibility of the government to prove the guilt. This is only possible when every essential element of an offense charged is proved beyond a reasonable doubt. Moreover, a defendant in a criminal case has no obligation or duty to prove his or her innocence. The burden of proving each element of a crime beyond a reasonable doubt rests upon the prosecution, and that burden never shifts to the defendant. Additionally, a court never declares someone innocent, because it is not necessary to prove actual innocence to be acquitted.
Our Founders would be disappointed to learn that in America today, an individual is considered guilty until proven not guilty, but to be clear, this is not the result of changes within our criminal justice system. Journalists, activists, ordinary citizens, and even American presidents feel qualified to render verdicts and commentary from the periphery in the court of public opinion even though they were not a part of the jury. This ultimately undermines the entire system. An acquaintance of mine who usually posts pictures of his lunch or boasts about his blessed life with his beautiful wife and family announced on Facebook that he was blocking and unfriending any supporters of Kyle Rittenhouse. He asserted, “I don’t want you (expletive deleted) in my life, on my screens, or in my consciousness. He continued, “Rittenhouse is a murderer that went to Kenosha to kill, and he got away with it.” The fact that Rittenhouse was acquitted did not matter, because, in America, you are guilty until proven innocent. Even a not guilty verdict is insufficient for those who only see life in America through the lens of race and emotion.
Most Americans are unaware that our system of choosing jurors does not happen everywhere. For example, Israel is unusual among common-law-derived systems due to the absence of juries in its legal system. All criminal and civil trials in Israel are conducted before professional judges, who act as the triers of fact, as well as the triers of law. As Alan Dershowitz has illustrated, “unlike the United States Supreme Court which is constrained by the requirements that there be an actual case and controversy and that the case be brought by someone with standing, the Israel Supreme Court declined to accept such constraints on its power. This has led to controversial decisions that some Israeli critics- including some distinguished lawyers and academics-believe exceed the proper authority of courts, while others believe these decisions have been essential to maintaining the rule of law.”
In England, Parliament has abolished juries in most types of civil cases and restricted their availability in lesser criminal offenses. The American criminal justice system has its flaws, but it is surely an institution that is the bedrock of our society. In Democracy in America, Tocqueville remarked that the American jury system served to “communicate the spirit of the judges to the minds of all citizens,” and to educate the citizenry about the law. In an American legal system dominated by lawyers and judges, the jury is the guardian of the public trust and the voice of the nation’s values. To question the verdicts that they render while seeking to destroy the lives of the acquitted is an affront to their tremendous sacrifice. American journalists wield extraordinary power over the lives of defendants that have been proclaimed not guilty by the American criminal justice system and continue to be among the least accountable people on the planet. There is a double standard between the level of accountability to which members of the mass media hold the individuals that they report on, and the level of accountability to which they permit themselves to be held. In most instances, the level is close to zero. If we ever hope to make America a place where defendants are once again considered innocent until proven guilty, this must change, and journalists must be held accountable for questioning the verdicts of criminal trials that they did not participate in.