Abstract
In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. Prosecutors’ responsibilities to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed.
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Notes
This is also the view of the U. S. Supreme Court in Bell v. Wolfish 441 U.S. 520 (1979).
The shadow-casting metaphor in law originally comes from Mnookin and Kornhauser (1979).
See In re Winship, 397 U. S. 358 (1970).
I am grateful to Zach Hoskins, in his comments on an earlier draft of this paper, for forcing me to reconsider my account of the presumption of innocence. I am not sure whether he will be happy with the new version.
Laufer (1995) defends such a robust version of the presumption of innocence. Laudan (2006, pp. 96–103) has vigorously criticized this interpretation of the presumption. Space does not permit me to respond to his criticisms in detail, but suffice it to say that, unlike Laudan, I do not think it absurd to ask jurors to set aside their antecedent beliefs about defendants and take up a stance the will put the state’s evidence to an exacting test.
Of course, saying this presupposes that proportionate sanctions are inflicted on those convicted of crimes.
There is room for debate about whether the high standard of proof in criminal cases—beyond a reasonable doubt—is necessarily part of what I term the “moral assurance process,” or whether a weaker standard of proof (e.g., clear and convincing evidence) would suffice.
For discussion of the inadequacies of the indigent defense system in the United States, especially when contrasted with the system in England, see Lefstein (2004).
Notice that even if the presumption of innocence at trial is interpreted less robustly, as requiring jurors only to be agnostic about defendants’ guilt or to believe it is equally likely that defendants are not guilty as guilty, strongly prejudicial comments by prosecutors ahead of trials might make it difficult for jurors to grant the presumption.
The contrast between a “due process” approach to the criminal process and the “crime control” approach is famously drawn by Packer (1968, Chapter 8).
Prosecutors have also been alleged to use pre-trial detention, or the threat of its continuation, to put pressure on defendants to accede to guilty pleas. If this is indistinguishable from the other dubious methods of shirking the burden of proof that I subsequently identify, then this is a further reason for prosecutors to exercise more restraint in the use of remand.
In Germany, prosecutors are deemed neutral officers of the law, and so required to investigate evidence leading to the exoneration of suspects as well as to their convictions. See Weigend (1999).
Though as noted previously, many defendants might be poorly represented by appointed lawyers or over-worked public defenders. It seems doubtful, however, that the way to correct these problems with the indigent defense system is to ask or require prosecutors to build the defense’s case for it.
This is common practice in Germany. See Weigend (1999).
For skillful development of the idea that the prosecutor’s duty to do justice is to be interpreted as a robust commitment to adversarial due process during the trial, see Zacharias (1991).
Yet U. S. Federal Sentencing Guidelines permit prosecutors to recommend sentences based on unproven charges. See Kirchner (1992).
I believe that we should never regard charge adjudicative processes as more than presumptively final. Doing so would allow us to keep the door slightly ajar to correct errors of mistaken conviction and mistaken acquittal.
I distinguish reductions in charges or sentences, terming them “waiver rewards,” from trial penalties, which are increases in sentences post-trial designed to punish defendants for exercising the right to trial (Lippke 2011, Chapter 1).
In particular, any assigned sentence longer than the presumptive sentence set at the settlement hearing would have to be explained by the sentencing judge and would be subject to appeal by the defendant.
The origins of the “half-loaf” designation for such cases are unclear. I first encountered it in Alschuler (1968, p. 60).
There is room for debate about how stringent the test should be on the sufficiency of evidence for prosecutors to proceed with further charge adjudication. I prefer a jury test, such that prosecutors should proceed only if they are convinced that the evidence is strong enough to convince a jury to find the defendant guilty beyond a reasonable doubt. Since most jurisdictions require juror unanimity or close to it, such a test requires the evidence to be sufficient to convince a collection of citizens, as opposed to a single citizen, beyond a reasonable doubt. Of course, verdicts in some criminal cases will be rendered by judges, some of whom may be biased against defendants. An ethical prosecutor should not, in my view, proceed with evidence that is convincing beyond a reasonable doubt only to such a judge.
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Cases Cited
Bell v Wolfish 441 U. S. 520 (1979).
Bordenkircher v Hayes 434 U. S. 357 (1978).
In Re Winship 397 U. S. 358 (1970).
Acknowledgments
I wish to thank the participants in the conference for their many helpful comments and suggestions about the paper. I want to especially thank my commentators, Zach Hoskins and Chad Flanders, for their insightful remarks.
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Lippke, R.L. The Prosecutor and the Presumption of Innocence. Criminal Law, Philosophy 8, 337–352 (2014). https://doi.org/10.1007/s11572-013-9208-y
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DOI: https://doi.org/10.1007/s11572-013-9208-y