9.6 Presumption of Innocence
It is fundamental that no matter the charge, every defendant is presumed innocent.101 The prosecution bears the burden of proof as to every element of every crime charged. The required showing must be made "beyond a reasonable doubt."102
Because these principles are so basic, they rarely create problems in practice. When they do, it usually arises in one of three situations. The first involves the trial judge who seeks to define the seemingly undefinable—reasonable doubt. With rare exceptions, the trial court is well advised to avoid attempting a definition;103 error in such an instruction will require reversal.104
It should be noted that "reasonable doubt" is defined in many federal, state, and military jurisdictions.
The second situation occurs when the legislature attempts to define a crime in the negative, putting some burden of proof onto the defendant. The most prominent case involved a state law that required a defendant charged with murder to prove that she acted "in the heat of passion on sudden provocation" in order to reduce the charge from murder to manslaughter.105 The Supreme Court found this burden shifting to be unconstitutional.106
Finally, the issue may arise when the legislature creates an offense that requires traditional elements to be found by the jury beyond a reasonable doubt but gives the responsibility to the judge to find, usually by a preponderance of the evidence, facts necessary to give a substantially enhanced sentence. Such a "procedure is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system."107
Defense counsel must be especially alert during the prosecutor's final argument for comments that can be interpreted to shift the burden of proof to the defendant. For example, "Ladies and gentlemen, not one word of evidence to refute our case came to you from the defense table over there." Timely, precise objections must be made and pressed until an adverse ruling is obtained, or waiver will be found on appeal. That is, if an objection is sustained, counsel must seek an instruction that the jury be directed to disregard the statement. If that is granted and given, a mistrial must be requested. If the objection is sustained and no instruction to disregard is sought, or if the objection is sustained and an instruction to disregard is given but no mistrial is sought, an appellate court is likely to find that the defendant received all the relief requested.
References
Articles
Jeffrey Bellin, The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865 (2012).
Danny Boggs, The Right to a Fair...
