Contrary to common belief, the presumption of innocence applies only inside a courtroom. It has no applicability elsewhere, although the media do not seem to be aware of this. Even the editorial sections of major American newspapers frequently express the view, in reference to a pending case, that "we"--meaning the editors and their readers--have to presume that so-and-so is innocent. To illustrate that the presumption does not apply outside the courtroom, let's say an employer has evidence that an employee has committed theft. If the employer had to presume the person were innocent, he obviously couldn't fire the employee or do anything at all. But of course he not only can fire or demote the employee, he can report him to the authorities.
Actually, even in court the are problems with the presumption of innocence. The presumption of innocence, we all know, is a hallowed doctrine that separates us from repressive regimes. It's the foundation, in fact, for the rule that is the bedrock of our system of justice--that a defendant can be convicted of a crime only if his guilt has been proved beyond a reasonable doubt. However, legal presumptions are based on the rationale of probability. Under certain situations, experience has shown that when fact "A" is present, the presence of "B" should be presumed to exist unless and until an adverse party disproves it. For example, a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail delivery. But when we apply this underlying basis of probability for a legal presumption to the presumption of innocence, the presumption, it would seem, should fall. Conviction rates show that it is ridiculous to presume that when the average defendant is arrested, charged with a crime, and brought to trial, he is usually innocent. But obviously, the converse presumption that a defendant is presumed to be guilty would be far worse and, indeed, intolerable. Our system, for readily apparent reasons, is far superior to those in nations, mostly totalitarian, which presume an arrested person is guilty and place the burden on the accused to prove his innocence.
The solution would seem to be simply to eliminate the presumption-of-innocence instruction to the jury, keeping those two necessary corollaries of the presumption which do have enormous merit: first, the fact that the defendant has been arrested for and charged with a crime is no evidence of his guilt and should not be used against him; and second and more important, under our system of justice the prosecution has the burden of proving guilt. The defendant has no burden to prove his innocence. It is one thing to say that the defendant does not have to prove his innocence, and that in the absence of affirmative proof of guilt he is entitled to a not-guilty verdict even if he presented no evidence of his innocence at all. To go a step further, however, and say that he is legally presumed to be innocent when he has just been brought to court in handcuffs or with a deputy sheriff at his side seems to be hollow rhetoric. One day a defendant is going to stand up in court and tell the judge, "Your Honor, if I am legally presumed to be-innocent, why have I been arrested for this crime, why has a criminal complaint been filed against me, and why am I now here in court being tried?"
As any seasoned criminal trial lawyer will attest, most juries see through the transparent fiction of the presumption of innocence. Whether they verbalize it or not, as reasonable human beings they know that if the defendant seated at the counsel table in front of them were truly presumed to be innocent in the eyes of the law, they would not have been empaneled to hear and adjudicate the charges brought against the defendant by the law. It is even possible that the articulation of the presumption of innocence by the judge to the jury may, on balance, work to the detriment of the accused. If the jury knows the presumption of innocence is a legal fiction, yet the judge intones the presumption to them in a very sober manner, and with the straightest of countenances, could it be that he thereby loses a speck of credibility in their eyes? And when he subsequently instructs them on those matters which are legally sound and designed by the law to protect the rights of the defendant (e.g., the doctrine of reasonable doubt), they may not take his words as seriously as they should?
