Causes of Erosion 

An erosion of the presumption of innocence has occurred over the last several decades, resulting in miscarriages of justice and, even worse, wrongful convictions.  Neither prosecutors, judges, nor legal scholars individually triggered the deterioration. Instead, CPI believes that changes in our social culture have caused the biggest impact.  “The role of the justice system isn’t to be our best attempt at omniscience, it’s to establish if the default innocence of a free citizen can be proven invalidated.” [1]

CPI has identified a number of causes for the erosion of the presumption of innocence.  This list is not comprehensive:

  1. Use of conclusory terms such as “victim,” “survivor,” and “perpetrator,” prior to a final determination of guilt or innocence by a court of law, foster a presumption of guilt.[2]
  2. The advent of “victim-centered” investigations, which ask law enforcement authorities to assume all allegations of sexual assault are valid.  Such practices create the possibility of real or perceived confirmation bias by investigators.  In turn, since we know all allegations are not accurate, true victims will be harmed by skepticism, and the potential for wrongful convictions will increase dramatically. [3]
  3. Bail policies were originally constructed to ensure that the accused would return for trial. The accused was presumed innocent, and therefore should not be punished by imprisonment prior to a conviction in a court of law.  Bail policies have been greatly reformed over the last half century.  Specifically, Courts are now permitted to evaluate the merits of a case based purely on the affidavit of probable cause to determine likelihood of conviction, when crafting an appropriate bail.  Further, Courts have also been asked to assess the potential danger to the community before granting the accused bail.   These two modifications beg the Courts to presume guilt rather than innocence. [4]
  4. Broadly defined legal statutes enable prosecutors to charge defendants with a wide range of criminal offenses, increasing the likelihood that the accused will be convicted.  In addition, military prosecutors often utilize collateral offenses (conduct unbecoming, fraternization, and adultery) to ensure a conviction, especially when the underlying charges are weak. [5]
  5. Criminal statutes that lack a specific mens rea eliminate the burden on prosecutors to prove criminal intent on the part of the accused.  As such, morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system. [6]
  6. The criminal justice system has become a system of plea bargains.  “The fact is that the criminal justice system no longer has much to do with transparent adversarial truth-seeking; it has far more to do with the opaque processing of (rightful or wrongful) recent arrests.” Prosecutors must utilize sound discretion when crafting plea deals, and avoid using coercive tactics to induce a wrongful plea. [7]
  7. Modifications to the evidence rules over the last 35 plus years have also affected the way we view sexual assault allegations.  Individually, the reforms have sound logic, but when aggregated, it becomes apparent that the reforms are designed to increase conviction rates and increase the likelihood that the complainant will be believed.  Specific evidentiary modifications include:
    • No corroboration evidence is required
    • No requirement for a prompt complaint
    • Advent of affirmative consent laws
    • Rape Shield rules preclude evidence of the complainant’s prior sexual history, but the accused’s history can be admissible to show evidence of pattern. [8]
  8. Media accounts may serve to undermine the defendant’s presumption of innocence. For example, the accuser is often referred to as the “victim,” even in cases where there is no objective evidence that a crime took place. The word “alleged” is rarely used, and a one sided inflammatory account of the story is utilized to boost the allure of the article or television segment. Finally, media reports may reveal the name of the defendant, but not the accuser. The result can be prejudice to a defendant even before the trial begins. [9]