The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant has the right to remain silent and never has to prove innocence or present any evidence.
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"Although the Constitution does not require jury instructions to contain any specific language, the instructions must convey both that a defendant is presumed innocent until proven guilty and that he may only be convicted upon a showing of proof beyond a reasonable doubt." Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir. 2004), overruled on other grounds, Byrd v. Lewis 566 F.3d 855 (9th Cir. 2009) (citation omitted). "Any jury instruction that reduces the level of proof necessary for the Government to carry its burden is plainly inconsistent with the constitutionally rooted presumption of innocence." Id. The words "unless and until" adequately inform the jury of the presumption of innocence. United States v. Lopez, 500 F.3d 840, 847 (9th Cir. 2007).
Bravo Company had been operating in Iraq for about six months when they were given a change of mission in a new area of operations (AO). One of their first missions was to conduct a route clearance operation along Route Patriot and to secure the Madwan bridge. There was little known about the enemy activity along this route since it was not well traveled by coalition forces. As Bravo Company moved along the route to their objective, one of the vehicles from 3rd Platoon was hit with an improvised explosive device (IED), killing the 1st squad leader. The next day, the company established a base of operations adjacent to the bridge and continued to provide area security along Route Patriot. Shortly before dusk, a soldier from the company command post (CP) noticed an Iraqi man crawling along the far bank of the canal, which was next to Route Patriot. The canal separated the soldier from the Iraqi, so it was difficult for the soldier to see what the Iraqi man was doing. The soldier's team leader grabbed a pair of binoculars to get a closer look, and he realized that the Iraqi man was digging a hole. The team leader quickly reported this over the radio to the commander, who was out on a mission. Remembering the IED incident the day before, the team leader believed that the actions portrayed by the man on the opposite shore indicated hostile intent, so he shot the Iraqi. Later that week, a local sheik had a meeting with the battalion commander and told him that one of his soldiers murdered an innocent farmer who was digging a hole to collect rain water. A Commander's Inquiry (15-6 investigation) was initiated to determine the facts of the incident and to identify any misconduct. During one of the interviews, the radio-telephone operator (RTO) stated, "Yeah, he outright murdered the guy." However, after interviewing all soldiers involved, the investigating officer determined that the soldier's actions were in line with the ROE in light of the IED threat in the area.
For the many thousands of Americans detained in jail pending trial or plea bargain, the fundamental principles of due process and the presumption of innocence are virtually meaningless. The two principles are given meaning at the trial stage by the state's burden of proving guilty beyond a reasonable doubt, yet only a small percentage of accused ever reach trial. For the overwhelming majority of detainees, incarceration in jail following arrest and inability to post bail becomes punishment before conviction; the oft-recited myth of the presumption of innocent until proven guilty becomes in reality a harsh presumption of guilt following arrest. Pretrial detention impacts are quite similar to those of post-conviction incarceration, even for those truly innocent of the crimes charged. If we take seriously the criminal process's concern that the margin of error in fact-finding be reduced so that an innocent person is not punished until he is found guilty, then we must reexamine the dogma that the principles of due process and the presumption of innocence are not generally applicable to pretrial procedure. In place of our current Probable Cause Model should be a new model, that of Probable Guilt. Under this new approach, an accused unable to make the bail that has been set is entitled to a forward-looking probable guilt hearing, with a right to counsel; the State can only justify continued detention, with its stigma and deprivation of liberties, if it snows by clear and convincing evidence that there is a substantial likelihood of conviction. The goal is to minimize erroneous punishment of those who are legally innocent.
It is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from enquiries.
These reconceptualisations of the presumption of innocence have been criticised by legal theorists who worry about the unintended consequences of expansive interpretations. One major concern is that the normative clout of the presumption of innocence as a legal principle will be undermined by attempts to extend its protections from those at risk of the serious injustice of wrongful conviction to those at risk of, for example, the rather mundane intrusion of being subject to CCTV surveillance. It is not hard to see how this might occur. Currently, the presumption of innocence enjoys the legal status of a fundamental right and is thus treated as resistant to pressures from moderate increases in utility (e.g. in the number of guilty people convicted) that proposed restrictions to it may yield. But moderate increases in security may be thought quite reasonably to justify measures that risk visiting measures of suspicion such as increased CCTV surveillance or inclusion on police databases. Conflating the protection of the innocent from wrongful conviction with the protection of the innocent from suspicion or mistrust risks eroding commitments to the former in light of the relative triviality of the latter. Conversely, claims that surveillance undermines the presumption of innocence may well encourage, amongst those not versed in the details of the debate, the mistaken view that it actually results in greater numbers of miscarriages of justice, thus leading people to object to it with a force stronger than is properly merited.
This section proposes the following, unintuitive, and no doubt controversial thesis: surveillance practices can and to some extent already do protect innocent people from being erroneously charged and convicted with crimes and thus promote the presumption of innocence. They do so primarily by providing a source of data that can be used as evidence to rule out suspects from investigations and thus spare them the significant burdens of being charged or convicted with crimes they did not commit. This is achieved in three ways: first, by correcting tunnel vision in police investigations; second, by reducing the rate of false confessions; and third, by increasing exculpatory evidence available to the defence. Recent empirical work from the USA and UK on the causes of erroneous charge and conviction is drawn upon to develop these claims.
While this argument has some merit, it is a little too quick. If used as a matter of routine, certain technologies can correct tunnel vision and thereby reduce the risk of wrongful conviction. The most obvious example is the use of DNA, fingerprinting, and other forensic techniques. The success of DNA testing in particular in the correction of miscarriages of justice is undeniable. When DNA evidence is available and reliable, it can provide the much-needed objectivity to cut through tunnel vision and protect innocent suspects from becoming defendants or even convicted criminals. Might some of the advantages of DNA evidence also be shared by evidence gathered by surveillance? There is reason to think it might. 2ff7e9595c
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