The Presumption of Innocence

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

The presumption of innocence in the United States stems from the 5th, 6th and 14th Amendments to the Constitution.  See Coffin v. United States, 156 U.S. 432 (1895).

Texas Code of Criminal Procedre Art. 38.03 is called  the “Presumption of Innocence” and states, “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.”  Also in a criminal trial, the judge and prosecutor have legal duties not to impair the presumption of innocence.  See Tex.Code.Crim.P. Section 2.01 and 2.03.

Despite these seemingly straightforward concepts and what seem to be airtight safeguards — studies have shown that the presumption of innocence is widely ignored and/or misunderstood by jurors.

What is worse is that clever prosecutors manipulate the presumption of innocence during phases of a criminal trial such as jury selection and closing arguments.  The twists, turns, and spin the prosecutors are trained to use is so subtile and seemingly docile — and often they themselves aren’t even aware they are doing it in the first place.  What is so unfortunate is that as the studies to which I’ve linked above suggest — jurors need very little persuasion to either ignore the presumption of innocence or badly misconstrue it.

A common tactic I’ve seen prosecutors use in felony trials such as theft, burglary or the distribution of drugs cases is to suggest to the jury panel that if there is little evidence of guilt in the case — it is merely because the accused is ‘good at being a criminal.’  The prosecutor suggests that their case is weak because it is the criminal defendant “that chose the time, place, and witnesses to the crime.”  In other words the person on trial is a criminal according to the State — whether they can prove it or not.  Clearly that is opposite of the presumption of innocence which suggests no evidence at all means the State hasn’t met their burden of proof and the accused should be acquitted.

Although most prosecutors won’t admit to this — one of the aspects they find the most frustrating about DUI and DWI trials is that the person on trial ACTUALLY GETS the presumption of innocence from jurors with similar backgrounds and experiences as the accused.  As this abstract readily points out — jurors need very little encouragement to allow pre-existing biases and prejudices wipe-away the presumption of innocence with the concept of congruence (which I understand to mean that once the jury learns certain background information of an accused person — such as occupation, age, income level, or race; they then draw negative inferences about the person in general).

With a DUI or DWI trial, the jury can readily identify with the defendant and so there is probably less chance the jury draws negative inferences from the accused’ profile — and the greater chance the accused is actually presumed innocent.

A common tactic used by prosecutors in a driving while intoxicated trial is to ask prospective jurors whether the person on trial “looks like a drunk driver” or “what does a drunk driver look like?”  Of course, the prosecutor readily points out that ANYONE can be a drunk driver (and it’s implied that even though this person looks innocent — they might be a criminal.)  Again, while prosecutors see this as an innocuous question — I see an underhanded swipe at the presumption of innocence.

The bottom line is that when hiring a criminal defense lawyer in Dallas or Collin County, you should select a trial lawyer that not only understands the presumption of innocence, but will fight the State’s underhanded attempts at undermining what is one of the most critical cornerstones of American justice.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific case you should consult an attorney directly.

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