What does “Presumed Innocent” really mean in front of a jury?

by Paul Castle

Yes, the burden of proof for the government in a criminal trial is ‘proof beyond a reasonable doubt’.  Yes, the law says that you are presumed innocent unless and until you are proven guilty.   But the problem is, it is not some omniscient being called ‘the law’, but twelve men and women from the community called ‘the jury’, who renders the verdict.  So an important question to ask is, ‘Do jurors really presume a criminal defendant to be innocent unless and until proven guilty?’

I always tell my client before a jury trial that a jury trial is an art, an art of persuasion, not a science.  In a football game, referees would bring out a tape measure to the field to ascertain whether the distance covered was exactly ten yards or not.  If it was nine point 3 yards, it would not be called ‘first down.’  In other words, things are precise in football.  Things are not quite like that in a jury trial.  There is no yard stick or tape measure that juors can use to determine whether the evidence presented was proof beyond a reasonable doubt or not  There is no electronic gauge or device that jurors can rely on to determine whether they are persuaded only up to the ‘more probable than not’ standard or whether they are really persuaded beyond a reasonable doubt.

However strong or however weak the evidence might appear to you or me does not matter.  However weak or flimsy the government’s case might seem to you or me, the jury might still find the defendant guilty.  By the same token, however strong or overwhelming the government’s evidence might appear to an outside observer, the jury might still return a verdict finding the defendant not guilty.  In any given case we cannot tell in advance what will make the jury tick. We cannot know in advance what will make the jurors reach an unanimous decision in one way or the other.  In the end, whatever it might take to convince the jurors to vote in your favor, that is the only thing that matters.  That’s why I frequently tell my clients that if you want to win, the jurors will have to like you.  If they like you, they will find a way to help you.  They will find a way to find you not guilty, no matter what the evidence might be.

Some of my clients would tell me that since a defendant are presumed innocent in a criminal trial, they would just like to sit back and make the government prove their case.  I would tell these clients that they would most likely lose their cases if this was their attitude.   I would gently advise them that in reality they are not presumed innocent unless proven guilty.  I would tell them: the moment that jurors find out that you are a criminal defendant charged with such and such offenses, the jurors almost immediately believe you are guilty.  The moment the trial begins, you are guilty, not innocent, in the minds of the jurors.  The pendulum is all the way up in the guilty section.  And we, the defense, have to chip away and chip away at the government’s evidence as the case progresses.  We have to try to bring the pendulum back to the ‘not guilty’ section, little by little.

We can, and you can, bring the pendulum back to the ‘not guilty’ section only if you go in with the attitude that you are going to prove your case, with the attitudee that you are going to prove your innocence.  The legal standard that you are presumed innocent until proven guilty is a fiction that is not going to help.  Don’t rely on a legal fiction.  Rely on yourself.  Go in there and do everying you can to prove your innocence.  Then, the jury will help you.

When do the Miranda Rights kick in?

Frequently, my clients would tell me during a consultation that they were not read their rights during their interaction with law enforcement.  They would usually be quite upset when they would tell me about this.  And they would nearly always go on to ask, “Shouldn’t they dismiss my case?”  Nearly always, my answer would be, “Not so fast.”

One of the first things we learn in law school is that one’s right to the Miranda warning kicks in when one is subject to custodial interrogation.  A paradigm example of a custodial interrogation is something like the following:  you get arrested; you are then taken to a police station; and you are then confronted with officers who ask you a bunch of questions about an incident they are investigating.  In other words, your Miranda rights or your right to a Miranda warning do not get triggered unless you are first in custody and unless you are subject to questioning by officers under those circumstances.

Let’s suppose that you are pulled eneover by an officer for a traffic violation.  The officer now tells you that he can smell the odor of marijuana emanating from inside your vehicle.  The officer then asks you, “Did you recently smoke marijuana inside the car?”  Under that scenario, you are, technically speaking, being detained for investigative purposes, not arrested.  So your Miranda rights do not kick in.  And the officer does not have to first read you the Miranda rights before he starts questioning you.  Of course, the line between being arrested and being detained is not always cristal clear.

Now let’s imagine a situation where your Miranda rights are violated.  Suppose that you get arrested, you get taken to a police station and then you get subjected to questioning by officers without first being given the Miranda warning.  Let’s further suppose that you get charged criminally after such custodial interrogation.  Does this mean that your charges ought to be dismissed entirely because your rights were violated?  Not so fast.  In general, the only remedy you can obtain from the courts where your Miranda rights are violated is that any statement or statements you made to law enforcement in violation of your Miranda rights will be suppressed.  That is, law enforcement will not be allowed to use whatever statement you made in violation of your rights at trial against you.  However, the criminal charges themselves remain in place, and all the other evidence also remain in place.


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