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The presumption of innocence as a ‘term of art’

The Moakley courthouse in Boston.

In court last week in US v. Tsarnaev, federal Judge George O'Toole said something stunning about the presumption of innocence in US trials.

Masha Gessen reports for the New Yorker:

One of the written questions was whether the potential jurors had already formed an opinion about whether Tsarnaev, who is charged with thirty counts in connection with the bombing, is guilty. Most said that they have, and that they believe he is guilty. This opinion alone is not grounds for elimination from the jury pool: the jury is supposed to represent the community, and most of the people of Massachusetts seem to believe that Tsarnaev is guilty. The task before the judge and the lawyers is to ascertain whether the jurors are capable of setting aside their existing opinions in order to fully consider the evidence.

If jurors cannot be expected to believe that Tsarnaev is innocent, there is the question of what the “presumption of innocence” means. On the third day of the voir dire, an argument erupted between the defense and the prosecution about this basic issue. Judy Clarke, one of the defense attorneys, said that the questioning was conflating the presumption of innocence with the concept of burden of proof, and assuming that it was enough for a prospective juror to understand that it was the government’s duty to show that Tsarnaev was guilty. The judge sided with the prosecution, saying that “presumption of innocence” is “a term of art” that does not actually mean presuming the innocence of a defendant.

O'Toole's statement is alarming to say the least. But this cavalier attitude toward fundamental due process protections is not unique to the Tsarnaev trial. Andrew Cohen explains why: since judges and lawyers are eager to seat juries, while potential jurors are eager to duck service and go home, "the business of selecting jurors occurs with a sort of wink and a nod."

Who cares if the voir dire process is failing? We all should. But why? Because we don't want the government incarcerating or executing people for crimes they didn't commit. The best way to ensure this doesn't happen is to respect the Fifth Amendment, which guarantees us all 'due process' of law. The presumption of innocence plays a central role in that due process.


[The] presumption of innocence [matters because it] goes back thousands of years, to the Old Testament, to Greek and to Roman law, and to English common law, from which American law was born. Because the United States Supreme Court, 120 years ago in a case styled Coffin v. United States, decreed that "the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our current law."

Apparently this "axiomatic" presumption does not lie at the foundation of the system in 2015. Here in Massachusetts, like elsewhere nationwide, citizens could benefit from a history and civics lesson about just why this presumption matters. One juror in Tsarnaev expressed her frustration with the voir dire process when she said, "You told me I would have to choose between the death penalty and life in prison, I did not know 'not guilty' was an option." She was completely serious.

© 2021 ACLU of Massachusetts.