“Because only 80 out of 100 pieces of necessary proofs were in place, a [dangerous] criminal was once let off scot-free despite the overwhelming evidence against him. […] Yet a 100-piece jigsaw puzzle depicting an elephant will not look like a cat or a lion just because you only get 80 pieces correct. With 80 pieces, you can already see that it is an elephant.”
“The prosecutor likened this case to a jigsaw puzzle with 20 missing pieces. Of course, we cannot say that an elephant picture will turn into a lion picture just because the jigsaw lacks 20 pieces. But without the 20 pieces, we are unable to tell whether the elephant was crushing someone with its front foot or kicking a ball with it. What happens if upon seeing that it was kicking something, we assume that the elephant has killed a person and execute it, only to discover later that what lay under its foot was a ball not a human? A dead elephant cannot return to life.”
That was an exchange between a prosecutor and the defense attorney heroine, Jang Hye-sung, in courtroom drama I Hear Your Voice. While the show’s treatment of legal issues was questionable at certain points, it highlighted an important dilemma between criminal enforcement and protection of the accused’s rights. Prior to the case in question, Hye-sung’s mother was killed by an ex-convict bent on exacting vengeance against Hye-sung. His elaborate plot was such that, not withstanding his criminal history and the overwhelming circumstantial evidence, his guilt could not be “proven beyond a reasonable doubt.” Helpless in face of this basic tenet of criminal justice, which ultimately exonerated him, she lost her faith in the legal system. A year later, the ex-convict framed Park Soo-ha, Hye-sung’s love interest, who bore a grudge against him and was found under incriminating circumstances, for murder by cutting off his own hand and faking death. With all the facts of the case working against Soo-ha’s favor, the only means of clearing his name was to get the court to acknowledge the possibility that the ex-convict was alive, in spite of the complete absence of corroborating evidence. Thus, in an ironic twist of fate, Hye-sung found herself using the legal precept that freed her mother’s murderer to rescue the person she loved.
This tenet of “innocent until proven guilty beyond a reasonable doubt” is a legal tradition recognized in most civil and common law jurisdictions and enshrined in international instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. The burden of proof is placed on the prosecution, albeit with a number of exceptions. From a utilitarian perspective, the principle appears irrational as most suspects charged in courts are ultimately found guilty. Since “he who spares the guilty punishes the innocent,” it makes more sense to presume guilt in times of doubt and punish those prosecuted so that chances of reoffences are minimized and feelings of injustice and insecurity maximally redressed. The presumption of innocence also flies in the face of reality, because if a suspect were truly considered innocent, there would be no need to proceed with a trial in the first place. Most contentious of all is the application of the principle when there is a preponderance of incriminating evidence. Such indiscriminate uses may undermine the credibility of the presumption even in cases where suspects are highly likely to be innocent.
Buttressing the presumption of innocence against those pragmatic considerations are mainly moral and political ideologies. Kantian philosophy, to start with, advocates that every individual should be treated as an end in himself, rather than merely as a means to an end. Sacrificing an innocent suspect for the greater good disregards his welfare and rational will. Only the genuinely guilty, in Immanuel Kant’s view, deserves retributive punishment because they alone endorse harm as a universal law through their criminal actions. The ideal of equality, meanwhile, supports the application of the reasonable doubt requirement to as many prosecuted persons as possible to minimize discrimination in the adjudication process on the basis of personal history, race, geographic location or other characteristics associated with criminal propensity. On the political side, the presumption serves as a check against State power, deterring the State from wielding its massive power against individuals capriciously or abusively, never mind that criminal organizations and anti-social individuals sometimes pose a greater threat to society. Assigning the burden of proof to the prosecution by default compensates for the defense’s lower access to investigatory resources compared to the State, notwithstanding that proof of non-intention is sometimes better furnished by the accused (e.g. through cooperation in psychiatric examinations), which results in the numerous exceptions belying the rule. Unlike the aforementioned practical concerns, which deal with the more immediate, perceptible reality of everyday living experienced by the majority of people, these arguments are rooted in anti-authoritarianism and the belief that the unit is more important than the whole.
Arguments like the one raised in the opening dialogue augment the case for presuming innocence with an element of practicality. They suggest that whereas the probability of producing further crimes by releasing a suspect and that of delivering justice by pronouncing him guilty are unclear in the absence of sufficient proof, the certainty of harming him through criminal punishment is always absolute. Hence, legal theorists like Moses Maimonides declared it better that a thousand guilty persons escape than that one innocent suffer. This line of reasoning may enjoy a broader appeal as most people, regardless of their diverse moral and political leanings, are hesitant to cause intentional and severe hurt to innocent parties.
Still, neither logic nor dogma can negate the fact that the presumption of innocence is as much a game of chance and convenient guise as a presumption of guilt. As the exchange above illustrates, the presumption of innocence can be a capricious tool, working in one’s favor when he happens to be accused of crimes but leaving one to the whims of fate when he is the unfortunate target of crimes. In addition, because the presumption is not factually accurate, it can be difficult for commentators and law enforcement participants to take its philosophy seriously. Legal analyst Dan Abrams, for instance, equated the presumption with suppression of independent thought and rejected any obligation to presume innocence outside the court. Concurring with him, television host Dick Cavett proclaimed that the presumption “has nothing whatever to do with you and me.” Former American Vice-President Dick Cheney, too, stated that he was more concerned with the many militants wrongly released than with the few innocent people wrongfully detained under the US anti-terror campaign, even though the latter made up 25% of detainees. Yet, by endorsing potentially unjust media persecution, public censure and deprivation of liberty of suspects, these statements contradicted the spirit of the legal tenet, which objects of protection, morally speaking, exist in pre-trial stages as well.
To enhance delivery of justice and increase faith in the principle of “innocent until proven guilty,” it may be beneficial to reconcile the presumption with reality. This may be facilitated by acknowledging patent facts and clarifying the ambit of the principle. For a start, the reality is that we simply do not know with perfect certainty the culpability of many suspects or even that of many ordinary people. Presumptions of innocence or guilt should thus be generally reserved to circumstances where a system or individual is forced to choose between treating a person one way or another. This would apply to questions of sentencing or setting free a prosecuted person, confiscating his property or allowing him to retain them, etc. When there is a third choice like further investigation, however, there are less grounds for presuming guilt or innocence. Instead, the default description of the situation should perhaps be “pending evaluation / further information.” Admitting this lack of knowledge may justify the continuation of victim protection measures and monitoring of persons acquitted by a narrow margin. In the example discussed in the drama, for instance, the ex-convict could have been tracked after his acquittal to forestall his subsequent diabolical plan.
Such an approach is certainly not without flaws. In particular, it gives rise to the risk of unacceptable deprivation of suspects’ civil liberties on the pretext of “further investigation.” To remedy this, it may be useful to subject all third (and subsequent) choices to the standards of necessity, proportionality, effectiveness and legitimacy, all of which are already elements of European Community law. More specifically, measures adopted should be no greater than necessary for aiding crime investigation and prevention, they must be warranted by the severity of the threat at hand, and there must be adequate reason for believing in their effectiveness and suspecting the targeted person. Thus, pre-trial detentions, for example, should not be longer than required for time-efficient investigations and trials, whereas torture would not be supported as it generates testimonies of dubious veracity. In this way, the freedoms and welfare of the accused can be safeguarded without resorting to legal make-believe.
Indeed, the presumption of innocence is a case of legal fiction—rules built on factually inaccurate premises and adopted in laws for the sake of expediency. Another instance of legal fiction is the reference to corporations as legal “persons.” Paradoxically, although—or perhaps, precisely because—the ramifications of these rules are more real than those of legal dramas, the latter, “mainstream” type of legal fiction can readily command its audience to suspend disbelief in spite of some failings in common sense and realism, whereas the former cannot even with strong logical and ideological rationale for doing so. In the form of legal fiction embodied by the presumption, the missing pieces continue to cry for attention and tug at our conscience. Until they are found, society has to live with the indignation and unrest they generate. While protecting the rights of alleged perpetrators, the law should not give up too readily on the hunt for those pieces.