By Hon. (Ret.) Ken E. Adair
The Presumption of Innocence Does Not Presume Inevitability
Video Transcribed: What is the presumption of innocence? In criminal cases, even as a judge, one of the questions I would ask in voir dire is, “Who understands the presumption of innocence?” Or ‘Who’s heard of the presumption of innocence?” And almost everybody’s hands go up.
And I’ll point to somebody and say, “What is your understanding of the presumption of innocence?” And invariably, the juror will say, “Innocent until proven guilty.” And I thank them and I tell them that is as correct as you can be, and yet still be absolutely wrong. And I get this look of horror because we’ve all heard “innocent until proven guilty”.
And I tell the jurors, “We’re going to be here until our mid-morning break,” or, “We’re going to be here until lunch.” “We’re going to be here until the end of the day when we’re released to go home.” But we know what’s going to happen. It’s inevitable. It’s a matter of time. Until means inevitable. It’s going to happen. We’re going to stay here until lunch. We’re going to stay here until the end of the day. We’re going to go home until we have to come back the next day. Until denotes an inevitability.
The presumption of innocence does not presume inevitability. The presumption of innocence is until proven guilty beyond a reasonable doubt in each and every element of the crime. That’s a huge difference. Unless and until are nothing alike in the realm of the presumption of innocence. Now we armchair quarterback. We watched the show, Cops or SVU and other shows on TV, Law, and Order. We watch these shows and we understand the presumption of innocence as innocent until proven guilty because we know what’s going to happen at the end of most of these cases.
A lot of times in Cops, we see the crime committed or we see the immediate aftermath. But in a jury trial, it’s unless. You need to drive that point home. Don’t let them fall into this mindset that the presumption of innocence is innocent until proven guilty because until means it’s going to happen. And there’s no presumption of innocence. And the idea that they’re innocent until the state gets done, and then we’re going to find them guilty.
So a little shorter video than what I’m used to. That’s an important concept that you need to drive that point home. Talk about it in voir dire. Do not fail ever in a criminal case to talk about that in voir dire. I’ve enjoyed talking to you about this. I look forward to talking to you some more. This has been Oklahoma trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.