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Dan Abrams

Dan Abrams

Posted: March 1, 2009 09:31 PM

Presumed Innocent? Bernie Madoff?


People constantly complain to me about news coverage of criminal cases. "What happened to the presumption of innocence?" they ask at almost every turn. Well, I'm tired of it.

I don't presume that Bernie Madoff is innocent. The same goes for toddler Caylee Anthony's mom Casey, or for any of the alleged mobsters on trial in New York, or most other high-profile defendants. Certain defense attorneys (or former Illinois governors who effectively decide to represent themselves) would have you believe that is somehow shameful, maybe even anti-American.

As a citizen -- or even a TV legal analyst -- am I required to presume innocence, i.e., that the authorities arrest the wrong person in every case? Not a chance. Imagine how this might play out on television:

"So Dan, how bad is it for (insert name of minor reality-show celebrity here) that the authorities found a pound of cocaine and four ounces of heroin on his person and in his car, the entire arrest was captured on videotape and the defendant confessed the drugs were his?"

"Bad? Bob, I have to presume the defendant innocent, so I'll presume those drugs were planted by corrupt police officers well before the car came into focus on the tape. And that confession? Well, it must have been coerced." That would hardly reflect an effort to assess and evaluate the legal strategies and evidence as fairly and objectively as possible.

While not explicitly articulated in the Constitution, the presumption of innocence has, through Supreme Court opinions, become a fundamental tenet of our criminal-justice system, and rightly so.

Traced back to Deuteronomy, and reportedly embodied in the laws of Sparta and Athens, the presumption ensures that government, which has the enormous power to take away someone's freedom, assumes the burden to prove its accusation beyond a reasonable doubt, the properly demanding legal standard in criminal proceedings.

Essentially we stack the legal deck in favor of the defendant. After all, the potential consequence (in most cases prison time) is so grave that we say we would rather let "10 guilty men go free than convict an innocent one." But unless I am sitting in the jury box armed with that power I, and any other nonjuror for that matter, have no obligation, moral or legal, to embrace that legal fiction.

The same applies, for example, to hearsay evidence. It's generally inadmissible in court, and yet most of us live our lives based on what people we trust tell us they heard or learned.

Some claim that, because legal banditos like me refuse to presume every defendant innocent, the prospective jury pool is polluted, thereby making it impossible for jurors to presume innocent a defendant in a high-profile case. Malarkey. That is why we have jury selection.

The goal is not to find jurors who necessarily know nothing about a case, but to find jurors who can fairly evaluate evidence and determine guilt or innocence. No question, extensive media coverage can make the selection of a jury take longer. In a worst-case scenario, a change of venue would be the remedy. But defense attorneys who complain about poisoned jury pools are often really just saying that they think prospective jurors are lying when asked what they've heard about the case in the media.

Watching jury selection during the O.J. Simpson civil case in Santa Monica in 1996 served as a reminder that, lo and behold, not everyone follows news that closely. Did every juror know about the criminal case that had concluded in downtown Los Angeles months earlier? Of course. Did they know some of the facts? Surely. But they were also not O.J. junkies who had followed the ins and outs of the case. They were open to rendering a verdict based on what they heard in court.

What about those like CNN's Nancy Grace who seems to presume every defendant guilty? Criticize her if you like, but such behavior doesn't mean the rest of us must feign ignorance. We can question police and prosecutors without necessarily presuming they are corrupt or misguided.

Early in the investigation of the Duke University lacrosse players accused of rape in 2006, some of the very same people who suggest that the presumption of innocence be applied in all aspects of society demanded that action be taken immediately against the students. The case is now regularly cited as an example of how important it is to presume all defendants innocent in the media as well.

But that misses the point. Those of us who examined the evidence, even superficially, quickly realized the case was flimsy at best. The lesson there was not about presumptions but about the need to critically evaluate facts.

Demanding that all of us presume every defendant innocent outside of a courtroom is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion. There is nothing "reasonable" about that.

Mr. Abrams is NBC News chief legal analyst and the CEO of Abrams Research.

This article originally appeared in the Wall Street Journal