You may notice that I use the term “you” in the above title. This is because anyone anywhere in Georgia can be arrested for anything. It does not matter whether you are innocent or guilty of a crime. The standard for a law enforcement officer to obtain a warrant for your arrest is something called “probable cause.” This legal standard has been held by the appellate courts to be one of the lowest standards of proof in criminal procedure. The inquiry simply asks, “Is it more probable than not that the person committed the crime?” If so, you are arrested, booked into jail, and may or may not get bonded out.
You would be shocked to see the number of “law and order type” folks that hire me for their son, daughter, or even themselves who completely change their mindset about guilt and innocence when they see a loved one arrested as opposed to someone on television or in the newspaper. Suddenly, these criminal legal standards have real meaning.
My friends who are prosecutors will quickly point out that in a jury trial, the defendant IS PRESUMED INNOCENT, and must be proven guilty beyond a reasonable doubt. This is very true. However, I wonder how many people actually believe that the defendant is presumed innocent. How many jurors hold the State to their burden of proving guilt at trial?
I have delved into these issues during my jury trials over the years. Sometimes, I ask the jury panel to look over at my client. I then ask, “How many of you are wondering what he did?”
I usually see a half dozen people raise their hands. A few others move their arms just a little. But, most jurors just stay silent. It is a straightforward, but somewhat uncomfortable question. However, it tells me a lot about the jury panel that I will be working with.
I have to confess that if I were on a jury panel, I would probably be in the group that would raise my hand. That is because even though I am a criminal defense attorney, I have conservative tendencies when it comes to law and order in society. When I walk into a court room and see a defendant sitting at the defense table, I at least subconsciously wonder “what did he do?”
This is just a natural curiosity that most humans possess. However, the law must overcome our human instincts.
If my son was sitting at the defense table facing 12 members of the community, I would want for them to presume that he is innocent unless the State is able to prove him guilty beyond a reasonable doubt. I would want for the jury to implement these concepts of law with the rights of the defendant at the front of their minds.
The judge will always tell the jury about what the law is and isn’t. However, a 15 minute reading of jury instructions with terms that most people have never even heard of can make the most attentive juror focus on what’s for dinner rather than the limited purpose of prior difficulties evidence.
I truly believe that the vast majority of jurors take their jobs very seriously and usually come up with the correct verdict. I would just like to see the focus on the presumption of innocence given its due consideration.
I have reminded you many times over the years that millions of people throughout world history had no rights such as jury trials, the presumption of innocence, or the right to a lawyer. Some people have even had to prove their own innocence at a trial. This may have happened after the defendant was beaten and abused for weeks before trial.
Be grateful for our system of criminal procedure and justice. Also, the next time that you are called for jury duty in a criminal case, just for a moment, think about how you would want to be treated while sitting at the defense table with your life hanging in the balance.