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Donald Boudreaux: Presumption of innocence not just for criminal courts

| Thursday, Oct. 4, 2018, 7:51 p.m.

The fiery debate raging over Brett Kavanaugh’s ethical fitness to serve on the U.S. Supreme Court was never destined to polish our appreciation for the subtleties of political trade-offs and the complexities of social life. Instead, it has revealed in many partisans a disturbing willingness to embrace any argument, no matter how flimsy, that scores debating points in the heat of the moment.

Perhaps most disturbing is the argument, peddled by Kavanaugh’s opponents, that the presumption of innocence doesn’t apply outside of criminal courts. The argument is this: Because neither the Senate nor the general public sits as a jury to decide whether or not to convict Kavanaugh of a crime, it’s unreasonable for Kavanaugh’s defenders to demand that he be accorded a presumption of innocence.

It’s true that a fundamental feature of American criminal law is the presumption of innocence given to all criminal suspects. A government possessing the power to oblige those whom it accuses of crimes to prove their innocence is a government that is practically unconstrained in jailing or executing whichever individuals it finds to be inconvenient. It’s untrue, however, that this presumption is or ought to be confined to criminal courts.

A presumption of innocence is one that every civilized person uses routinely in his or her everyday life.

If your 6-year old child Johnny accuses your 7-year old Jimmy of throwing a rock at him without provocation, you don’t treat that accusation as proof of its own truth. Instead, you seek evidence to back it up. Furthermore, while searching for such evidence, you presume that Jimmy is innocent. And in the absence of sufficient evidence you don’t punish Jimmy, even though you are aware that throughout history many siblings have thrown things at each other without provocation.

We use a presumption of innocence in our daily lives in part because we understand that talk is cheap. It’s easy to falsely accuse someone of committing a wrong. And so if accusations were taken as proof of their own truth, the Johnnys of the world could unjustly inflict harm on the Jimmys far too easily. All the Johnnys would have to do is to level false accusations against the Jimmys.

Another reason we use the presumption of innocence in our daily lives is that we understand the impossibility of proving a negative. If someone has committed a wrongful act, there’s an actual event that happened. And evidence can in principle always — and in practice frequently — be gotten for events that happen.

Evidence is far more difficult to gather for events that didn’t happen. Indeed, such evidence often doesn’t exist. If Jimmy and Johnny were playing together all day in your yard, what evidence could Jimmy possibly show to you to prove that he did not throw a rock at Johnny? Unless you had a camera aimed at Jimmy every second of the day, even if he is innocent of Johnny’s allegation, Jimmy cannot possibly gather evidence that would overturn your presumption of his guilt.

A presumption of innocence is embedded in our criminal law for the same reason that it is embedded in the rules by which we conduct our daily lives — namely, a presumption of guilt, being nearly impossible to overturn, would enable each of us far too easily to inflict unjustified ‘punishment’ on innocent others whom we, for whatever reason, wish to harm.

Donald Boudreaux is a professor of economics and Getchell Chair at George Mason University in Fairfax, Va. His column appears twice monthly.

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