It’s In Your Court: You are presumed innocent

Judge Steve Halsey

Over the past several months, there have been serious allegations of sexual harassment and criminal sexual conduct against many celebrities and politicians. The question is sometimes asked, “Should these alleged perpetrator’s have to prove their innocence?”

Among the fundamental rights we all have as U.S. citizens is the presumption of innocence. Whether a citizen gets a speeding ticket, is charged with DWI, or is indicted for murder, the presumption of innocence remains throughout the entire court process, including any appeals, if the citizen is convicted by a judge or jury. 

Unlike the right to counsel or reasonable bail, the presumption of innocence is not in the U.S. or Minnesota Constitutions. It is a part of the common law which American jurisprudence has followed from the British tradition. Oft-quoted is British jurist and law commentator Sir William Blackstone who put it this way back in 1765: “It is better that ten guilty persons escape than that one innocent suffer.” 

The U.S. Supreme Court in 1895 traced the roots of the presumption of innocence to Deuteronomy in the Old Testament and to Roman law. It is unquestioned that this presumption in favor of the defendant has been a principle of Western common law for hundreds of years.

A few years ago, during jury selection in a felony trial I asked the prospective jury panel of 22 citizens whether they felt that because the defendant was seated in court on trial he must be guilty of something. Surprisingly, four jurors raised their hands and said they felt that way. They were all excused from the jury for having this preconceived notion and unwillingness to recognize the defendant’s presumption of innocence.

Given the media attention that often surrounds serious crimes, it is not surprising that the presumption of innocence may be questioned. However, 362 wrongfully convicted offenders have been released, some after many years in prison, as a result of DNA testing that exonerated them. Oct. 2 was Ineternational Wrongful Conviction Day. The Innocence Project ( reports the following statistics:

• 20 people had been sentenced to 

death before DNA proved their 

innocence and led to their release.

• The average sentence served by 

DNA exonerees has been 14 years. 

• About 72 percent of those 

exonerated by DNA testing are people 

of color. 

• Of 362 DNA exonerations, 158 

actual assailants have been identified. 

In Minnesota in 2001, a man convicted of rape in 1985 was exonerated by DNA testing after the Ramsey County Attorney’s Office began a systematic review of pre-1995 convictions to determine if DNA testing would have affected the outcome. The Innocence Project states, “Those exonerated by DNA testing are not the only people who have been wrongfully convicted in recent decades. For every case that involves DNA, there are thousands that do not.”

It adds, “Only a fraction of criminal cases involve biological evidence that can be subjected to DNA testing, and even when such evidence exists, it is often lost or destroyed after a conviction. Since they don’t have access to a definitive test like DNA, many wrongfully convicted people have a slim chance of ever proving their innocence.”

Why the presumption of innocence? Consider if you were charged with a serious crime that occurred in a place and at a time that you could not have possibly been present. If your only alibi is that you were home by yourself, with no one to vouch for your presence there, how could you possibly prove your innocence if you had to? You would have great difficulty proving that you were not at the crime scene and did not commit the crime. 

Question: What does a defendant have to prove in a criminal case?  Answer: Absolutely nothing.

The prosecution has the burden of proving a criminal defendant guilty beyond a reasonable doubt. The prosecution cannot argue that the jury must “decide which story to believe,” because the defendant does not have to convince the jury of any story. 

The defendant has a Constitutional right to remain silent, cannot be compelled to testify and the prosecutor cannot comment to the jury about the defendant’s failure to testify. Prosecutors are prohibited from attacking the presumption of innocence. Prosecutors, for example, cannot argue to the jury that the presumption of innocence is only for the truly innocent and is not a shield for the guilty. 

All of these rules are necessary to insure that a person’s presumption is fully protected. The presumption of innocence is one of the fundamental rights which we all enjoy as members of a democratic society governed by law. It is a fundamental right that you have which must be protected. 

Remember: It’s in your court!


—Submitted by Judge Steve Halsey, Wright County District Court, chambered in Buffalo. Judge Halsey is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District. Excerpts can be viewed at Go to Community and click “The District Court Show.”

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