Presumption of Innocence

I am going to alter what I stated I would discuss this week and save that to next week. This week I want to discuss a concept which has been much maligned over the last several years, especially on talk radio, as a legal fiction and something which need not be honored in “real” life. That concept is the “presumption of innocence.”

Our criminal legal system has only three parts. First is the prosecution. Second is the defense. Finally, is the court.

The defendant while involved is not a direct participant, unless the option of defending one’s self pro se is exercised. The alleged victim is not a participant though also involved. This moniker of victim is itself a misnomer at the early stages of the prosecution. The correct term would be “complaining witness” or simply “witness”. A criminal prosecution is NOT between the complaining witness and the defendant. A criminal prosecution is an action brought by the state or federal government against an individual.

If you are charged with a criminal offense the law presumes you are not guilty. This presumption endures throughout the prosecution. The burden of proof never shifts to the defendant. Yet the use of the term victim erodes that presumption. People claiming “victim” status, of late, have been heard to complain that their rights are less than the defendant’s. But this is as it should be. These persons are not being prosecuted by the government for something they are presumed innocent. The prosecutor is not the lawyer for the complaining witness.

The prosecutor is the lawyer for the power of the state or federal government. The prosecutor does not file any criminal charge in the name of the complaining witness. Indeed, the charging document may not even name the complaining witness in its text.

Someone many years ago, mistakenly, decided to equate privileges to which the complaining witness may be entitled to the Constitutional rights of a defendant. As a result Oklahoma passed a “Victm’s Rights” measure which provided the “victims” of criminal offenses with certain information during the prosecution. That law is still in full force and effect in this state.

Now a California billionaire has decided to change the Constitutions of several states, including Oklahoma. He has spent $900,000.00 dollars to enforce his will on the Constitution of Oklahoma. SQ 794 will alter the State Constitution in ways that have not been explored or explained. There has been no discussion as to why the current law is inadequate to the task of providing the information it mandates.

Preemptively the current law is, therefore, adequate in the absence of any criticism of any deficiency. The question has been passed in other states and is under challenge for violation of federal constitutional provisions. Montana has declared it un-Constitutional there. Other states are attempting to repeal the measure and its exorbitant costs.

At a practical level, if you are charged with an offense which you did not commit, you want an objective prosecutor weighing the matter. You do not want the person accusing you of being the final arbiter of your fate. This state question appears to give the ability of the “victim” to disapprove any disposition of the case. Private citizens should not wield such power in a criminal case. We recently watched a spectacle play out in Washington over allegations of prior conduct by an appointee. Those who have previously ridiculed the presumption of innocence were suddenly fully on board with that concept. As it was not a criminal prosecution there were no “victim’s rights” applications were involved. But “what if”? Should you be charged, and the prosecutor decided to dismiss the case, would you want the accuser to be able to block that independent professional decision? The accuser (victim) can even withhold evidence of the defendant’s innocence by refusing to be interviewed.

Finally, if you were charged and tried and found not guilty as the law requires, then this person is not a victim. This state question attempts to alter your rights as a citizen. There are no explanations of how to restore your altered rights under this state question. How do we make whole that which this state question would remove? What are the risks of proceeding with bad prosecutions to placate a vocal complaining witness; placing the innocent in greater jeopardy because it is easier than dismissing the case.

AS always these are your rights, protect them. We do not need to change the current law. Changing a Constitution is even more serious and should never be done for light and transient reasons, even one’s which sound good on the surface. YOUR rights to Due Process are in grave jeopardy in this question.

It is a dangerous position to question “victim’s rights” but because each of us is potentially a defendant which should always question such proposals with clear eyed skepticism and act with great reserve.