How to Restore the Presumption of Innocence

As a result of Supreme Court decisions restricting the presumption’s application to trial, the presumption of innocence has become a legal notion that offers few protections for those accused of a criminal offense. To assure the criminal justice system remains committed to seeking justice, the Center for Prosecutor Integrity has identified several strategies to restore the presumption. This list is not comprehensive:

  1. Legislators should amend previous legislation, ensuring that all criminal offenses contain a mens rea element.
  2. Legislators should redraft the laws that define criminal offenses in an overly-broad manner in order to better specify the nature of the offenses.
  3. Eliminate the use of victim-centered investigations, which ask detectives to presume guilt on the part of the accused and presume that the complainant’s allegations are valid.
  4. Limit the use of the conclusory terms, such as “victim” and “perpetrator,” prior to any determination of guilt.
  5. Establish a pretrial services program to conduct a risk assessment on defendants in custody awaiting the initial appearance in court; provide supervision of defendants released by the court with conditions of pretrial release; and review the pretrial detainee population in the jail to see if circumstances may have changed that could allow for pretrial release.
  6. Prohibit prosecutors from employing coercive tactics, such as over-charging or use of superseding charges absent new evidence, which may induce a defendant to plead guilty simply to avoid an unwarranted prison sentence.
  7. Prosecutors should place all plea offers in writing for defendants, which would assure a measure of accountability and fairness in the bargaining process. CPI has developed a learning module for law students titled, Plea Agreements: Restoring Due Process and Fairness.
  8. Encourage prosecutors to value equitable resolutions rather than focus on high conviction rates. Due process for suspects should not be perceived as an obstruction to achieve “successful” prosecutions.
  9. Reinvigorate curricular attention at law schools about the importance of the presumption of innocence.
  10. Judges should apply the Daubert standard more commonly to expert witnesses who are providing scientifically questionable testimony.

Implementation of these strategies will help assure fair adjudications to produce the most reliable outcomes possible.