The right of silence, the presumption of innocence, the burden of proof, and a modest proposal: a reply to O'Reilly.

• Author: Ingraham, Barton L.
• Position: Response to Gregory O'Reilly, Journal of Criminal Law and Criminology, vol. 85, p. 402, 1994

1. INTRODUCTION

   In the Fall 1994 issue of this Journal appeared an article by Gregory O'Reilly(1) commenting upon a recent amendment of English criminal procedure which allows judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's failure to testify at his criminal trial in certain specified circumstances.(2) Joining English critics of this change in the law, O'Reilly, an American lawyer, argues that this amendment of English criminal procedure does the following: (1) it reverses a long history in English jurisprudence guaranteeing an accused person's right to silence in the face of a criminal accusation, (2) it degrades the presumption of innocence, the foundation principle of Anglo-American accusatorial criminal law, (3) it moves that accusatorial system of justice toward an inquisitorial system, (4) it does not achieve its desired objectives of increasing confessions and admissions during police investigations, the likelihood of obtaining convictions, and the consequent reduction of crime.

   After reading O'Reilly's article, I was impelled to write this reply, not only because I objected to its exaggerated tone and its perpetuation of certain myths about the English and American "accusatorial" system of justice versus the European "inquisitorial" system, but also because I believe that the time has come for Americans to begin to question their legal system--especially their criminal justice system--and the assumptions on which it is based. One of the most fundamental assumptions we must question is that the American doctrine of "the presumption of innocence" (which I will endeavor to define in the next section of this paper) is a doctrine which accords with a morality to which most Americans subscribe. From this doctrine emerge many ancillary doctrines, such as our notion as to who bears the burden of proof or production and which standard of proof should govern.(3) The American doctrine of the accused person's "right of silence" and the almost absolute protection the doctrine offers to prevent adverse consequences from exercising this right are also derived in large part from the presumption of innocence. This Essay will argue that these ancillary doctrines, too, are morally questionable.

   The moral position that American lawyers take in determining criminal responsibility--and in a similar manner, civil tort responsibility--is taught in law schools and becomes part of virtually every American lawyer's moral outlook. This moral stance, I believe, is alien to the average lay person's approach to the same issues and problems.(4) It takes a considerable amount of sophisticated exegesis and constant repetition to convince the ordinary lay person of the rationality and morality of these viewpoints.(5) However, these arguments, boiled down to their essence, often are little more than appeals to tradition ("This is the way we have always done things in this country"; "This way is hallowed in tradition, was instituted by our Founding Fathers in our Constitution"; etc.); by appeals to authority ("This way has been decreed by the Supreme Court of the United States"); or by bogus appeals to our xenophobia ("Our way stands in stark contrast to foreign methods of procedure and we all know what despots they are"). Perhaps the lay person's perception that many of these doctrines make no moral or practical sense is right and American lawyers are wrong. This possibility is one which this Essay asks the reader to consider seriously.

   In an effort to commence this re-examination, this Essay prefaces specific criticisms of the O'Reilly piece by defining "the American doctrine of the presumption of innocence." Next, this Essay will define certain central concepts of the criminal law and moral responsibility for criminal acts ("accountability," "responsibility," "culpability," and "guilt"). These concepts reflect on the presumption of innocence and its ancillary doctrine of the "right to silence" and the burden and standards of proof, in order to allocate more fairly between prosecution and defense the burden of proof. Following this discussion, this Essay will present a proposal which would accomplish a more fair allocation. Although this proposal may fly in the face of existing constitutional law, I ask the reader to consider the possibility that existing law, insofar as it prohibits the implementation of a proposal such as the one I make here, might change in the future, as constitutional law has in the past. It is important to point out at the outset that this Essay is not a typical law journal critique that tries to convince the reader that existing law is consistent with the approach that the critic advocates, but instead presents a new path for the law. Thus, except for certain empirical statements made in the course of this Essay, there is little case authority I can adduce in support of what I advocate, nor should this be expected. If this Essay is to be criticized, it should be on factual, logical, moral, and policy grounds.

   Finally, in the last section of this Essay, I return to the O'Reilly article to argue what I consider to be its deficiencies from an historical, comparative-legal, and logical perspective. In conclusion, this Essay hopes to have convinced the reader that nations like England, which are not bound by the constitutional straightjacket imposed on American jurisprudence since the early sixties, are free to alter their approach to the administration of criminal justice in ways that meet the needs of changing social circumstances. Whether these measures are effective in achieving their supposed utilitarian objectives is beside the point. The important consideration is that a nation should be free to do what is right and reasonable according to its ethical system for balancing equities and achieving justice in the administration of law. England has done that; and there is no reason why the United States should not be free to do the same and more.

2. DEFINITIONS

   1. THE AMERICAN DOCTRINE REGARDING THE PRESUMPTION OF INNOCENCE

      Undergirding O'Reilly's critique of the changes in English criminal procedure is the theme that it violates the "presumption of innocence" to require a suspect to respond to police questions in certain circumstances or to insist that a defendant respond to accusations by testifying at his trial, when that would have been the natural and appropriate thing to do if he were innocent of the charge, and in the absence of a defendant's testimony to permit the jury to draw adverse inferences of guilt from the defendant's failure to testify. If one looks at the matter from the perspective of the American doctrine, O'Reilly is undoubtedly correct in this assertion.(6)

      The American doctrine regarding the presumption of innocence has come to embody the following procedural elements:

      (1) The prosecution (the state) has the burden of proving all the essential elements, or ultimate facts, of the crime charged. These include proof of the criminal act, the defendant's mens rea, that the harm, if any, mentioned in the definition of the crime, was proximately caused by defendant's criminal act, and the harm itself, by the standard of proof "beyond a reasonable doubt" [hereinafter BARD].

      (2) The defendant, on the other hand, generally has no burden of proof, except perhaps the burden of creating reasonable doubt in the minds of the factfinder as to the strength of the state's case.(7) The defendant may remain silent and offer no defense, relying wholly on the presumption of innocence to carry him to a verdict of acquittal if he is confident that the state has failed to meet its burden. There is no duty on his part to take the witness stand in order to explain ambiguous or apparently incriminating circumstances involving him. Of course, he may testify in his own behalf if so inclined, but if he fails to do so, the factfinder should not draw from that failure any adverse inference of guilt, and neither the judge nor the prosecutor may comment upon the fact.(8)

      (3) The factfinder should withhold judgment at trial until all the evidence has been presented, and, unless the factfinder is convinced that the state has met its burden BARD, it should acquit. When the determination of fact has been left to a jury of lay persons, the trial judge may never direct the jury to return a verdict of guilt, no matter how strong the state's evidence or weak the defense. The same rule does not apply to the prosecution: as to it, the judge may direct a verdict of acquittal or dismiss the charges whenever the judge believes the prosecutor has failed to present a prima facie case or when, at the conclusion of the state's case-in-chief or at the end of the trial, he believes no reasonable jury could reach the conclusion that the state had proved all essential elements of the crime BARD.

      (4) In general, the presumption of innocence applies only to criminal cases and not to civil cases,(9) and

      (5) The presumption of innocence, as set forth above, now binds all the states under the Due Process Clause of the Fourteenth Amendment, as well as the federal court system under the Fifth Amendment Due Process Clause. Furthermore, it applies to some civil cases, which are technically "civil," but which can be classified as "quasi-criminal," such as proceedings to determine the status of "delinquency" under juvenile delinquency statutes.(10)

      These attributes or gloss given to the phrase "presumption of innocence" in American law are peculiar to our nation and culture and are not shared in all particulars by other nations. They do not define the meaning of the phrase from an international perspective. There is virtually no nation today that does not claim to abide by the "presumption of innocence" in the administration of its criminal justice system, but to some the phrase means little more than that the state bears the burden of proving the...