Presumption and Burden

Earlier today in a story about Mayor Laura Miller's attempt to have D'Angelo Lee forcibly removed from the land commission twice people made the comment that people are innocent until proven guilty. As is common in America a good legal axiom has here been truncated to make a false statement. A person is either guilty or innocent on the basis of the decisions they make. When people commit crimes, they cease being innocent whether they are ever found guilty or not. Similarly, people who have not commited crimes remain innocent even if a jury finds them guilty.

In the American legal system, a person is presumed innocent. This is a legal concept rooted in Roman law and quite possibly Deuteronomy. Deuteronomy 19:15, "One witness is not enough to convict a man accused of any crime or offense he may have committed. A matter must be established by the testimony of two or three witnesses." In COFFIN v. U.S., 156 U.S. 432 (1895), Justice White writing for the majority said, "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." The presumption of innocence is an important legal and ethical concept. However, its a good example of a social construction.

A person is not truly innocent if they have committed a crime. The legal system is designed to treat them as innocent. This means that those wishing to prosecute them for a crime have the burden of proof. They have the obligation to prove a person's guilt before the jury. If they do not prove the guilt, the person continues without threat of further prosecution or punishment. Presumption and burden of proof works in lots of different settings.

When a parent sets a curfew for 10:00 pm this 10:00 pm curfew has presumption. A teenager wanting to exceed that has the burden of proof to convince mom or dad that it should be exceeded in a particular situation. In an academic policy debate, the status quo has presumption and those wishing to change the status quo has burden of proof. This team is usually called the affirmative as they are the ones affirming the resolution and the resolution calls for a change. Academic competitive debates never end in a tie for this reason. If the affirmative team doesn't meet its burden of proof the round is awarded to the negative. Philip Tompkins, an organizational communication scholar, used the ideas of presumption and burden of proof in discussion the Marshall Space Flight Center's communication patterns. In the 1960's a person who thought an operation was unsafe had presumption. Those who wanted to move ahead had to prove that their designs were safe. Tompkins discovered in the wake of the Challenger Explosion that was largely blamed on Marshall that by the 80's presumption and burden of proof had changed. Those who thought something was unsafe then had the burden of proof.

Presumption and burden of proof are not ontological. They are designated to one side and the other of a contentious issue by those who mitigate the contentious issue. My short term appeal is that people ought not say a person "is" innocent until proven guilty but that a person is "presumed" innocent. On a deeper level, we should be aware of how presumption and burden of proof operate in so many different contexts.