Burden of Proof and Presumption of Innocence

Thus far in Criminal Procedure, we have discussed rights stemming from the Fourth Amendment, the Fifth Amendment and the Sixth Amendment. Although the Constitutional provisions have not always been explicit, and even when explicit have required interpretation by courts, the rights and privileges discussed thus far have always been founded in the Constitution.

The requirement that the prosecution prove beyond a reasonable doubt every element of a crime in order to convict a defendant is no exception. The burden of proof imposed on the prosecution and the presumption of innocence granted every defendant are based on the "Due Process" Clauses of the Fifth and Fourteenth Amendments.

EXAMPLE (1) Frank is accused of burglary in Midstate. According to Midstate statute, burglary consists of “breaking and entering into the dwelling of another at night with the intent to commit a felony therein.” The Due Process Clause requires that in order for Frank to be convicted of the crime, the prosecution must prove every element of the crime beyond a reasonable doubt. Therefore, if the prosecution can only show by the preponderance of the evidence that Frank’s alleged crime happened at night (they cannot prove, beyond a reasonable doubt, what time he broke in), even if the prosecution has a hundred witnesses, videotape and Frank's confession that all show that he broke and entered into the dwelling of another with the intent to commit a felony therein, a jury cannot convict Frank of burglary.

EXAMPLE (2) In Southstate, burglary consists of “breaking and entering the dwelling of another with the intent to commit a felony therein.” In Southstate, Frank could have been convicted of burglary, since all the other elements have been demonstrated beyond a reasonable doubt.

So, every element of the crime must be demonstrated “beyond a reasonable doubt.” What does that mean? In In re Winship, 397 U.S. 358, 367 (1970), the Supreme Court rejected the theory that there is only a “tenuous difference” between the “preponderance of the evidence” standard and the “beyond a reasonable doubt” standard. The Court has repeatedly failed to explicate a clear standard, however, that would permit us to give a clear meaning to the phrase “beyond a reasonable doubt.” In Cage v. Louisiana, 498 U.S. 39, 41 (1990), the Court did hold that “reasonable doubt” which, when present, would lead to a finding of not guilty, is something less than “substantial doubt” and “grave uncertainty,” but that “moral certainty” is not required in order to convict.

EXAMPLE: Joseph is on trial for stealing a coat from a local store. The stolen coat, while not unique, was fairly uncommon, and sold in only a few stores nationwide. Joseph was discovered several blocks from the store with a coat just like the one that was stolen 2 hours earlier. He was trying to sell the coat to passersby for $10. The coat sells in stores for $100. Joseph claims that his father gave him the coat just minutes before, and because he didn’t want his brothers to make fun of the brightly-colored garb, he decided to see if he could at least get a few dollars for it. Joseph’s father was unavailable to confirm or deny the story. Just because Joseph can provide a story that might explain his obtaining the coat without having stolen it, does not necessarily establish reasonable doubt, although it is unclear what the jury would actually decide in this case.

The cases dealing with presumption of innocence and burden of proof issues often revolve around the instructions provided to the jury. Unfortunately, just as it is not entirely clear what constitutes a “reasonable doubt,” it is not entirely clear what language is required to instruct a jury so as to protect a defendant’s rights. According to the Supreme Court in Taylor v. Kentucky, 436 U.S. 478, 486 (1978):

"While use of the particular phrase "presumption of innocence" -- or any other form of words -- may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.”

In other words, the Court said that, while there is no specific language requirement and there may be more than one Constitutionally acceptable way in which to instruct a jury, the message must nonetheless be clear to the jury that they may not convict a defendant based on evidence that leaves a reasonable doubt as to the defendant's guilt. In Taylor, the defendant was on trial for robbery and was convicted in the court of original jurisdiction. In his appeal to the Supreme Court, Taylor argued that the lower court’s refusal to instruct the jury on the presumption of innocence violated his right to a fair trial that is guaranteed by the Due Process Clause of the Fourteenth Amendment. The Court agreed, holding that the failure to give an instruction regarding the presumption of innocence and the prosecution’s burden of proof constituted reversible error.

EXAMPLE: In the state of Alatucky, the newly adopted Rules of Procedure suggest specific language for judges to instruct juries regarding the presumption of innocence and the burden of proof on the prosecution, which mirrors language upheld as adequate in previous Supreme Court cases. A local judge, intending to abide by the new Rules but missing his glasses that day, tells the jury “Y’all understand that the defendant isn’t guilty until you say so, and that the Prosecutor over there needs to do his job in order for you to say so, right? Now keep that in mind before you come back here and tell me whether the defendant is guilty, because unless you’re real sure that he’s guilty, and unless the prosecutor did his job, then it’ll just get reversed on appeal, ok?” Clearly, this is inadequate to remind the jury of the Fifth Amendment guarantees.

In In re Winship, 397 U.S. 358, 363 (1970), the Court stated that the standard of proving guilt beyond a reasonable doubt

“plays a vital role in the American scheme of criminal procedure.”

While every element of the crime with which a defendant is charged must be proved beyond a reasonable doubt, certain questions of fact might need to meet only the preponderance of the evidence standard. For example, whether a defendant’s Fourth Amendment right to be free of unreasonable searches and seizures has been violated need not be determined beyond a reasonable doubt. Also, whether or not a defendant’s Fifth or Sixth Amendment rights to counsel have been violated may be decided unfavorably to Defendant simply based on the preponderance of the evidence. See Lego v. Twomey, 404 U.S. 477 (1972).

EXAMPLE (1) Warren is on trial for corporate theft, accused of stealing trade secrets from his prior employer. At trial, Warren’s attorney argues that the documents found in Warren’s home-office are inadmissible evidence because the search was performed in the absence of a warrant and that therefore, the Exclusionary Rule applies to the documents. The prosecution argues that Warren gave his consent to conduct a search to the officers who arrived at his door one night. It is Warren’s word against that of the police officers who conducted   the search. The judge may decide to admit the evidence based solely on the fact that the government has shown consent by the preponderance of the evidence.

EXAMPLE (2) Later in the trial, the question arises as to whether Warren knew that the documents he took from his previous employer contained trade secrets. This is an essential element of the crime of corporate theft in Newstate because the crime entails “knowingly misappropriating trade secrets.” The judge should instruct the jury that in order to convict Warren they must find beyond a reasonable doubt that he knew the nature of the documents he took.