07/20/2007 04:31 pm ET | Updated Nov 17, 2011

Quarterback Michael Vick and the 'Presumption of Innocence': Going to the Dogs

(Correction Added Below)

Many have said and written this week that all Americans must presume Atlanta Falcons quarterback Michael Vick innocent of the reprehensible federal charges that involve dog fighting and related gambling.

We have no such civic obligation. It's a myth.

Item: William Rhoden writes Friday in The New York Times, "We have to embrace the presumption of innocence..." Item: The sportscaster Jim Gray of ESPN was on MSNBC last evening with Dan Abrams, and he said "There's a great presumption of innocence in our country..."

Abrams, an attorney himself and son of the famed first amendment lawyer Floyd Abrams, quickly interrupted, telling Gray that "the 'presumption of innocence' is a legal standard for a courtroom." Abrams made a proper distinction, and his guest looked bewildered.

This presumption does not apply to you and me as citizens; we're free to presume away about guilt or innocence. It only applies to jurors who sit in judgment, and even in that context it is often misunderstood. As Abrams said, it's a "legal standard for a courtroom." Period.

The concept of presumption of innocence obligates jurors to decide a verdict based on the evidence presented: "not guilty" if the prosecution fails to produce sufficient evidence to persuade them of guilt "beyond a reasonable doubt," and "guilty" if the prosecution succeeds.

In fact, so clear is this directive that a juror who believes in their gut that a defendent is guilty is actually compelled to vote not guilty if the evidence presented by the prosecution falls short of the threshold. In the same vein, a juror who feels certain about a defendant's innocence is supposed to vote guilty if the prosecution ultimately meets the test.

Millions of Americans -- including too many lawyers and journalists -- have an incorrect perception of the hallowed phrase "presumption of innocence."

Based on their thinking, nobody is ever supposed to believe anyone charged with anything is guilty.

Well, that's absurd on its face. Prosecutors estimate that roughly 99% of people arrested for murder, robbery, rape and assault are, in fact, guilty. Presumption of innocence doesn't mean suspending disbelief.

It means that a jury must assess the facts, weigh their validity alongside counter arguments from the defense, and demand that the prosecution -- the state -- prove its case. (Of course, jurors bring differing levels of analytical skill to this task, not to mention personal bias.)

Please don't misunderstand. I'm not arguing mob rule, or dismissing the importance of the presumption of innocence. Assuming only 1% of defendants are wrongfully charged and convicted (some say more), there are over 2 million people in prison, so that's a whopping 20,000 miscarriages of the least. These mistakes fall disproportionately on the economically disadvantaged, yet can ensnare people up and down the social ladder, sometimes leading to the death penalty.

That's why the presumption matters, and why it's a crucial legal protection inherent in several constitutional amendments.

But to repeat: the presumption has no bearing on non-jurors. Its singular purpose is to set and define the high bar that must be crossed by a fair and legitimate prosecution to achieve a guilty verdict. That's our system. It doesn't mean we must view the guy caught red-handed as a saint who really does love puppies. It means the burden of proof in a court of law is on the state, not on the accused.

If it were the other way around, and the burden fell on the accused to prove their innocence, we'd be living in a dictatorship. We needn't be lawyers to appreciate the difference.

The harrowing indictment against Vick is 18 pages long and is quite detailed. It's posted at

Let the wheels of justice roll, and feel free to have an opinion. It's everyone's right.

Correction: The original post mischaracterized the statistic of 20,000 wrongful convictions as annually.