Like most law enforcement officers, Officer Darren Wilson got a double-jumbo-sized serving of the presumption of innocence, at every stage of the process. (More)

How Innocent Are You?

Our system of criminal law is based on some core principles that most of us rarely if ever examine in depth. For example, law enforcement officers and prosecutors are not supposed to investigate suspects and look for crimes. Instead, they’re supposed to investigate crimes and look for suspects.

That may sound like clever wordplay, or merely stating the obvious, but consider New York City’s stop-and-frisk policy. Under that policy, offers stopped people – people of color, far more often than not – and frisked them for firearms, illegal drugs, or other contraband. The city defended this under the broken windows theory, arguing that catching people committing minor offenses would reduce major crimes. In fact twelve years of data showed that stop-and-frisk had little impact on the city’s crime rate.

While the federal court decision ending stop-and-frisk focused on the racial disparity – and rightly so – the deeper problem was that the NYPD turned a core principle of law upside down. As a matter of policy, instead of investigating crimes and looking for suspects, they were investigating suspects and looking for crimes.

Standards of Evidence

Most of us know the phrases “probable cause” and “reasonable doubt,” even if we’re not entirely sure what they mean. Those are two of the five standards of evidence commonly applied in U.S. law:

  • Reasonably Articulable Suspicion – Used for investigatory stops, this means facts or circumstances sufficient to lead a reasonable law enforcement officer to believe that a crime has been, is being, or is about to be committed, and that the person to be stopped is involved in or has knowledge of that crime.
  • Probable Cause – Used for arrests, searches, and for filing charges, this means facts or circumstances sufficient to conclude that a crime has been committed and that the person to be arrested or charged committed the crime, or that the place to be searched contains evidence of that crime.
  • Preponderance of Evidence – Used primarily in civil trials, this means that one party’s claim is “more likely than not,” given the totality of the evidence.
  • Clear and Convincing Evidence – Used primarily in forfeiture cases, this means something more than a “preponderance of evidence” but less than “beyond a reasonable doubt.” Call it “much more likely than not.”
  • Reasonable Doubt – Used only in criminal trials, this not a speculative doubt (“But what if someone else did it and framed him?”) but rather a doubt that is based in the evidence, a conflict in the evidence, or the absence of evidence.

More Intrusion, Higher Standards

The Fourth Amendment protects us from “unreasonable searches and seizures,” and the standard of evidence for a “reasonable” action depends on how much that action will intrude on your liberty and privacy:

  • Consensual Stop – A couple of weeks ago I met a deputy sheriff in the grocery. He said hi. I said hi. We chatted about the rain and whether people were driving well. He said there are always more accidents when it’s raining and asked me to drive safely. I said I would and we both moved on. As a matter of law, that was a consensual stop. I could have ignored his greeting, but he seemed friendly and I chose to chat, and I was free to walk away at any time. As a matter of law, a consensual stop (or search) is always “reasonable.” He didn’t need any evidence of criminality to say “Hi,” just as you don’t need any evidence of criminality to greet someone on the street.
  • Investigatory Stop – This is when an officer stops to ask for your name and what you’re doing, or to ask if you saw something that happened nearby. The officer can perform a “protective sweep,” patting you down for a concealed weapon. If that pat-down reveals evidence of contraband, the officer can ask to see it. If the officer suspects a weapon, he/she may ask you to hold still so he/she can take it out. Courts have held that investigatory stops must be “brief” and constitute a “minimal intrusion,” so the officer needs only the minimum standard of evidence: a reasonably articulable suspicion.
  • Arrest or Search – Here the intrusion is higher. If you’re arrested, you’re not free to leave and it won’t be merely a brief stop. If the police want to search your backpack or briefcase or cell phone or home, they’re intruding on your privacy. You can be arrested or searched without a warrant, but the police always need probable cause for an arrest and many (but not all) of the warrantless search exceptions are based on probable cause analysis.
  • Filing Charges – Next the prosecutor may ask for a grand jury indictment, or ask a judge to approve the charges at a preliminary hearing, depending on the jurisdiction and the severity of the charge. Either way, the standard of evidence to bind the case for trial is still merely probable cause and – as with a warrant application – the defense usually presents no evidence. Instead the grand jury or judge looks at the prosecution’s evidence and decides if there is a prima facie case: evidence that, unless rebutted, would support each statutory element of the offense(s) charged.
  • Criminal Conviction – This is the highest level of intrusion, and it requires the highest standard of evidence. Unless you plead guilty or no contest, the prosecution must prove every element of the offense(s) charged, to the exclusion of any reasonable doubt, with evidence lawfully obtained and lawfully presented at trial. If the prosecution can’t meet that burden … the court must presume you are innocent and let you go free.

Different people, different standards

In theory, those standards of evidence apply equally to everyone. But in practice, some would-be defendants get a bigger helping of the presumption of innocence.

For example, if you shoot someone, you will almost certainly be arrested. The police and/or prosecutor may decide you shot in self-defense, or that it was a tragic accident, and decide not to file criminal charges. But regardless, you will almost certainly be taken from the scene in handcuffs and remain in police custody while they investigate.

Unless you’re a cop and you shot someone in the line of duty. Then you will almost never be arrested. Far more often than not, you’ll be put on paid leave pending an internal investigation. In other words, you’re presumed more innocent than a civilian would be in a similar situation.

When it comes to filing charges, your attorney might move to suppress evidence at a preliminary hearing, but you probably won’t say a word. If the case goes to a grand jury, neither you nor your attorney will be there. The grand jury will see and hear only the prosecutor’s evidence, and he/she is not required to present exculpatory evidence. You’re presumed innocent, but the standard of evidence to file the charge is merely probable cause: does the prosecutor have evidence that, if not rebutted, would support each element of the offense(s) charged.

Unless you’re a cop. Then a prosecutor may let you testify to the grand jury or at the preliminary hearing. The prosecutor may even present exculpatory evidence on your behalf. At that point – in practice – the standard of evidence rises to a preponderance of evidence, or higher, depending on how the judge or grand jury weigh it. Again, you’re presumed more innocent than a civilian would be in a similar situation.

If the case gets to trial, the judge or jury is supposed to weigh each witness’ testimony in light of the other evidence. They shouldn’t take your word for what happened, but they shouldn’t take a cop’s word either. They should listen to the cross-examination, look for signs of dishonesty, and compare what each witness says to the physical evidence. But in Realworldia, if you’re black or brown the judge or jurors are more likely to think you’re lying …

… and if you’re blue they’re more likely to take you at your word, even if you’re the defendant. In fact, the law may require jurors to take a police officer’s word that the shooting was justified … unless the prosecution can prove otherwise, beyond a reasonable doubt.

So as a private citizen, you get the basic serving of presumption of innocence, at least in theory. If you’re a person of color, you more likely get only the crumbs. And if you’re a cop, you get a double-jumbo-sized serving.

So much for “equal protection under the law.”


Happy Wednesday!