The presumption of innocence

The likelihood of us being in the position of a groundlessly accused person, and thus experiencing a complete loss of security, is unknown. Many of us, however, live in the blissful delusion that we remain far outside the factors and events that may bring us to such a fate, and many join the mob that, by demanding the ruthless prosecution of crimes, forget the right of the presumption of innocence.
 
For many years a clapboard sign stood in the small town of Snow Hill in Utah: “Men’s boots can kick up the dust of this place for a thousand years, but nothing man can ever do will wipe out the blood stains of the poor folk who fell here.” It commemorated the massacre that took place there in 1899, known as “The Great Blizzard of 1899”. During this exceptionally severe winter that affected most of the United States, many men who had stolen food were killed. They were killed by bounty hunters on the basis of arrest warrants issued by the judicial authorities of the time. The events of Snow Hill led to a public condemnation of the judiciary’s use of bounty hunters.

The need for security is one of the most basic human needs. Since the dawn of time, people have been trying to eliminate not only threats posed by the forces of nature, but also those posed by others. It is precisely from a fear of the unwanted actions of others that we have created laws, on the basis of which we prosecute criminals who pose a threat to our safety. Crime rate is one of the most important indicators used to measure the well-being of people living in a particular country or city.

It seems that there are no threats contained in the collective pursuit of the need for security, and that fighting crime is a good thing in itself. Unfortunately, it only seems like that, and it’s not just about the old days in the Wild West. Equally, in communities living in countries with developed democracies, the pressure to eliminate crime often takes the form of an auto-immune disease in which the organism’s immune system destroys its own cells and tissues. Likewise, a society concerned about bestial crimes destroys individuals in an effort to restore safety.

The Innocence Project – an American non-governmental organization – has used DNA tests to launch an appeal against convictions in a trial where DNA material had not been analyzed. As a result, it turned out that the system failed the accused in at least one of the following six ways: eyewitness misidentification, invalid forensic science, false confessions, unreliable police informants, government misconduct, or insufficient public defense system. The Innocence Project has helped in acquitting 375 convicts for crimes they never committed, 21 of them facing the death penalty. The total number of years served in prison by these convicts was 5,824. In the persuit of security, society has deprived these people of their secure lives.

The search for security is not the only reason why innocent people are punished. The urge to punish and retaliate has even more serious consequences. Even though people do not rely on the death sentence as a fair punishment and it is a declining event worldwide, it is still responsible for the loss of innocent human lives. Members of the Innocence Project believe that one in nine death sentences in the United States is given to an innocent person, but no one knows exactly the scale of this phenomenon, as DNA tests only show us an outline of its true size. The figures collected by The Innocence Project show the vast amount of harm that society is doing to such an unjustly accused person. Does security really have to cost so much?

The data collected by The Innocence Project show not only the scale of false accusations, but also indicate the fundamental biases accompanying the identification and conviction of suspects. As much as 60% of all their cases related to black people, 31% Caucasian, 8% Latino, about 1% Asian American; less than 1% Native American and less than 1% others, which reflects the stereotype of a criminal still present in many people’s minds. According to their data, innocent black people are seven times more likely to be wrongfully convicted of murder than innocent white people. Data collected by The National Registry of Exonerations confirm this woeful stereotype. While African-Americans make up only 13% of the US population, 47% of known exonerations are related to them. This stereotype is probably shared by law enforcement officers, because of the more than 149 unarmed people killed by the police in 2017, 49 were black, according to Mapping Police Violence. According to the National Registry of Exonerations, cases of black people exonerated from wrongful murder convictions were 22% more likely to involve police misconduct than similar cases involving white defendants. Studies have shown that black people, Latino people, and communities of color are more likely to be stopped, searched, and suspected of a crime — even when no crime has occurred.

But it’s not just race that influences how the justice system treats its citizens. Social class is of no less importance. Those from lower economic strata are more likely to be arrested, convicted, and incarcerated for crimes than are more affluent individuals (1). White-collar crimes have traditionally been treated less severely by the criminal justice system than street crimes and poor perpetrators receive more severe sentences than affluent ones (2). Of course, we will not answer the question of whether they are jailed illegitimately or not as there is no reliable data to address this. Regardless of whether someone has been convicted rightly or wrongly, we will not find out unless there is an appeal trial. There is no superior institution that would verify the validity of judgments and provide such data. The fact that the poor are arrested more often than the rich shows that they will be brought to trial more often, and this must statistically lead to more frequent court errors. On the other hand, the legitimacy of the arrest is confirmed only by a court judgment, the validity of which cannot be verified. It’s a vicious circle.
 

Mentally disturbed people also fall victim to similar stereotypes. In the public perception, mental illness and violence remain inextricably linked, and mental illness is confused with dangerous threat. This perception is further augmented by the media, which sensationalizes violent crimes committed by persons with mental illness, particularly mass shootings, and focuses on the aspect of mental illness in such reports. However, a large body of data suggests otherwise. People with mental illness are more likely to be a victim of violent crime than the general population, and on average are less likely to be a perpetrator (3). This bias extends all the way to the criminal justice system, in which persons with mental illness are treated as criminals, arrested, charged, and jailed for a longer time compared to the general population (4).

Data on specific types of accusations shows where it is easiest to fall prey to false accusations. Particularly striking are the figures relating to false accusations of sexual harassment and pedophilia. Many studies show that up to 10% of sexual harassment accusations are unfounded (5), and it is believed that in divorce cases, up to 30% of all accusations may be false (6). The results of much research conducted in the USA between 1987 and 1995 suggested that the percentage of false accusations among reported cases of sexual abuse of children ranged from 6% to 35% (7). On the other hand, a meta-analysis from 1992 showed that false allegations of harassment accounted for 2% to 10% of all charges (8). In Canada, after accusations of teachers of sexual harassment became fashionable, almost half of all male teachers left the profession within 10 years, likely fearing unfair social stigma. We do not know if all decisions to leave the profession were caused by fear of false accusations, because such data does not exist, but thanks to a groundbreaking study by researchers from the Northern Canadian Centre for Education & the Arts, we know, for instance, that approximately 13 percent of the male candidates enrolled in a primary/junior teacher education certification program in a Northern Ontario faculty of education – one in seven – reported that they had been falsely suspected of inappropriate contact with pupils. According to the Australian Education Union, over 50% of the accusations concerning sex abuse in Australia against male teachers are proved to be without foundation. They claim that the fear of being falsely accused of child-sex offences is the leading reason why young men are turning away from teaching as a career option.

Pedophilia is one of the most disgusting and outrageous crimes, therefore the public reacts to news of its perpetration with strong pressure on law enforcement agencies and the judiciary. Such pressure causes them to reject what is an inalienable right – the principle of presumed innocence, according to which a person is innocent until proved guilty beyond reasonable doubt. “Better to accuse a few innocents than let these monsters roam free” is a typical comment from a representative of a society outraged by pedophilia. However, the authors of such comments rarely take into account the fact that when the principle of presumed innocence ceases to apply, they themselves can easily become one of the few innocents.

When a particularly repulsive crime is committed, the media and the public hold the law enforcement agencies and the judiciary to account. Allegations of sluggishness and a lack of “energetic action” in meting out justice are commonplace. Under such pressure, a culprit is quickly found (9, 10). However, when irregularities in the investigation and in court procedures that influenced the conviction of the innocent are revealed years later, that same public opinion demands that the innocent should receive compensation and apologies and the perpetrators of these irregularities be punished (11).

An unprecedented example of such a situation is the so-called Outreau trial, which took place in 2004 in northern France, and involved 18 accusations of child sexual abuse.  This case showed that the presumption of innocence might not be respected at all in pedophilia cases where emotions conveyed by the media prevail. For the first four years of the trial the media largely pre-tried the accused men and women of the most dreadful acts on children, creating public pressure on the judiciary (12). But both the first-instance case and the subsequent appeal trial revealed that the main prosecution witness, who was also convicted of abuses, had lied about the involvement of 14 suspects who in fact turned out to be innocent. Nevertheless, many of them spent several years in custody, and one died in prison. The Outreau trial sparked national outrage in France, with journalists, politicians and the public clamoring for an explanation of how such a blunder of justice could have occurred, and how innocent men and women were held in prison for years on unfounded suspicions. As usual in such situations, demands were made to punish those responsible for the abuses.

While society demands justice for the innocent, there are more reports in the press about the detention of people accused of pedophilia, sometimes leading to lynching of the accused by the local community or fellow prisoners. Amid the hate-filled comments the ones calling for common sense, as if no one remembered events similar to the Outreau trial, disappear. The principle of presumed innocence – the legacy of Roman law and the basis of worldwide law, or at least that of civilized parts of it – is suspended. “Better to convict a few innocent people …”

We do not know the real scale of the falsely accused and convicted, just as we will never know the true scale of domestic violence, human trafficking, bullying, corruption, tax fraud, medical malpractice and other similar crimes. Their perpetrators do not submit reports to the statistical office. The numbers at our disposal are just the proverbial tip of the iceberg. The likelihood of us being a groundlessly accused person, and thus experiencing a complete loss of security, is unknown. However, we are able to calculate the probability of becoming a victim of a car accident, contracting an incurable disease, or even becoming the victim of a specific crime. Many of us, however, live in the blissful delusion that we remain far outside the factors and events which may bring us to such a fate, and many join the mob that, by demanding the ruthless prosecution of crimes, forget the right of the presumption of innocence.

Today, in many countries, it is enough that a minor makes an accusation of abuse for a teacher, doctor, trainer, therapist, educator or parent to be put in preventive detention, even if they has hitherto lived like an angel, which was perfectly illustrated in the Danish-Swedish film Hunt, directed by Thomas Vinterberg (watch the Official Trailer below).
 

Society condemns the crime of pedophilia so much that prosecution removes the presumption of innocence. While in custody, whenever there is a suspicion of this kind of charge, the accused will be met by a roar of hatred from fellow prisoners for whom they have ceased to be a human being, and Roman law, with its principle of presumed innocence, is no obstacle for them in the administration of their own justice. If they end up in a multiple cell, they will face the worst possible torture that a people can inflict on each another in the present day, in a civilized part of our world. They will be extremely grateful if the prison administration takes them under the kind of care that will allow them to survive. But even then their life will become so burdensome that they will often look for an opportunity to part with it. I would like to emphasize once again that there is only one unproven accusation standing between us and this reality.

It is also worth mentioning that the consequences of making false accusations are far lower than the consequences for those wrongly accused. In many countries, the penalties for rape and pedophilia can be ten times higher than for making false accusations (13). Most often it is a sentence suspended for several months. Such cases are very difficult to find in judicial practice. Also extremely rare are cases in which, so often used in making false accusations, expert forensic psychologists would be accused of making false statements. The harshest sentence I’ve heard about concerned Jemma Beale, who made a series of false rape and sexual assault allegations and was jailed for 10 years. She claimed she had been seriously sexually assaulted by six men and raped by nine, all strangers, in four different incidents over three years.

In cases initiated by false accusations of pedophilia or sexual harassment, the accused are not the only victims. Interrogations, repeated examinations by experts, and finally participation in court hearings and the necessity to report events that never happened, all have an impact on the psyche of the alleged victims. In children this often leads to trauma of a similar intensity to that caused by actual acts of pedophilia (14). Therefore, from the perspective of those on whose behalf we pursue criminals, the penalties for such unnecessary damage should be commensurate with the damage that these actions would have caused.

But stricter penalties for making false statements are not the only way to improve the legal system. Since eyewitness misidentification has played a key role in many judgments of innocent people, jurors need to be taught the difference between reliable and unreliable witness testimony based on factors that affect an individual’s ability to recall memories (15). Some research results published in 2006 suggest that jurors generally do not understand how memory works or how certain factors affect memory formation. They are not aware of the selectivity of human memory, or of how memory can be altered by information received after the initial event. They are also unaware of how the interrogation process causes the information stored in the memory to mix with those provided in the interrogator’s statements (16).

Experts also agree that unvalidated science can do a lot of harm to innocent people. A study conducted to determine how frequently forensic evidence provided at trial was later proven to be invalid found that 60% of wrongful conviction cases were influenced by a misstatement or misrepresentation of scientific evidence by forensic experts. This evidence included microscopic hair comparison, serological analysis, and the analysis of bite marks, shoe prints, soil, fiber, and fingerprints (17). Nevertheless, courts very often rely only on the opinions of experts appointed by the prosecution, and too rarely cross-examine the presented evidence (15).

A way to reduce the likelihood of false confessions is to record the interrogation of the accused, which can later be analyzed for the occurrence of interrogation methods that put too much pressure on the interrogated. It is also worth paying attention to the credibility of police informants. They are often criminals motivated to cooperate by the police in return for a lighter punishment (15).

The system of assigning free public defenders is also important. As poor people, members of ethnic minorities or even the mentally ill are more often brought to trial, their access to the paid services of highly qualified lawyers is usually very limited. If we do not give them the ability to defend themselves to the same level as most citizens do, they will be more likely to face the biases of the justice system (15).

In situations related to accusations of pedophilia, society acts similarly to our immune system faced with an auto-immune disease – it loses the ability to recognize its own cells and tissues and, in responding to threats, ruthlessly destroys them, treating them as hostile organisms. These diseases are very difficult to treat because they require an understanding of where the error has occurred and halting the organism’s self-harm. Failure to do so results in irreversible changes and, as a consequence, even death. However, nothing is stopping a similar social reaction. Sometimes only the mob, whose representatives have defined themselves as a rational species, looks, as in the spring of 1899 at Snow Hill, at the devastation it has wreaked and for a moment will soberly demand … justice. Then those who hitherto acted under the mob’s dictation should tremble, for now its sword will turn against them.

One of the key arguments in favour of abolishing the death penalty is the fear of executing an innocent person. This fear probably stems from the presumed innocence most of us feel, the deep meaning of which crystallizes in the face of the death. Today, most people who consider themselves modern, cultured and educated have a negative relationship with the death penalty. But these same people remain indifferent to the acts of the judicial authorities carried out on other prisoners every day. Such mistakes do not burden their consciences, because “it is better to condemn a few innocents than …” A specific arithmetic of morality, or simple hypocrisy?

In the late nineteenth century, justice in the Wild West was administered by bounty hunters. When aiming, they interpreted the words “dead or alive” in the simplest and most convenient way. Today, in the 21st century, all over the world there are people who call themselves “pedophile hunters”. They organize provocations which lead to the arrest of genuine pedophiles, sometimes they accuse innocent people, and some of them, under the pretence of fighting pedophilia, commit the crimes that they are allegedly fighting. In 2018, 11 people were arrested in Myanmar after a violent crowd formed demanding the police turn a suspected pedophile over to them. In Indonesia, a mob attacked and killed a man suspected of being a child molester in 2017. In India, rumours of child trafficking and pedophilia spread on WhatsApp, have led to lynch mobs that have killed at least 29 people. Each of us, at any moment in our lives, can be on the wanted list of a self-proclaimed hunter of criminals who are especially hated by the mob. Can this be changed?

When Mark Twain in his 1901 essay on the rise of lynching thought about the best way to curtail the power of mobs, he drew hope from the tendency of a mob to back down when someone with courage defied it.“For no mob has any sand in the presence of a man known to be splendidly brave,” He remained convinced that mobs can be defused if “morally brave men” confront them. He was certainly right about the situation when the mob had already taken to the streets and began administering justice.

But structural changes are also needed to prevent mob justice. The most important ones include increasing the transparency of the judicial system. Thanks to it, people are able to understand how the legal system works, and thus trust it. A system in which the administration of justice partly depends on money, material goods and other privileges, encourages victims and witnesses of crime to impose punishments on their own. Therefore, it is no less important to minimize corruption. A supporting role is also played by reducing bureaucracy, which slows down the justice system and makes it difficult to seek redress, and therefore encourages people to take matters into their own hands (L28). It should be remembered that the justice of the mob often has its origins in social inequality, and the reduction of this is a way of preventing mob justice (L28). Finally, improving the education system that takes legal knowledge into account is of great importance for preventing acts of justice by the mob. If people know and understand the law, they don’t seek justice in the streets.

The Irish physicist and politician Edmund Burke once uttered the famous phrase:

“The only thing necessary for the triumph of evil is that good men do nothing.” I think the path of evil to triumph is simpler. It is enough for good people to intensively demand the retaliation, revenge, and punishment that they have mistaken for justice.

Tomasz Witkowski

References:

1. Miller, B.L.,”Social Class and Crime”, “The Encyclopedia of Crime and Punishment”, 2015.
2. Jankovic, I., “Social Class and Criminal Sentencing”, “Crime and Social Justice”, 1978.
3. Watson, A., et al., “Mental health courts and the complex issue of mentally ill offenders”, “Psychiatric Services”, 2001.
4. Gottfried, E.D., et al., „Mental Disorders Among Criminal Offenders: A Review of the Literature”, „Journal of Correctional Health Care”, 2017.
5. Bolen, R.M., “Child Sexual Abuse: Its Scope and Our Failure”, 2001.
6. Ney, T., “True and False Allegations of Child Sexual Abuse: Assessment and Case Management”, 1995.
7. Millon, T. and Lerner, M.J., “Handbook of Psychology, Personality and Social Psychology”, 2003.
8. Mikkelsen, E.J. at al. “False Sexual-Abuse Allegations by Children and Adolescents: Contextual Factors and Clinical Subtypes”, “American Journal of Psychotherapy”, 2018.
9. Beale, S.S., “The News Media’s Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness”, „William & Mary Law Review”, 2006.
10. Burstein, P., „The Impact of Public Opinion on Public Policy: A Review and an Agenda”, „Political Research Quarterly”, 2003.
11. Kimberley A.C. at al. „Public perception of wrongful conviction: Support for compensation and apologie”, „Alabany Law Review”, 2012.
12. Portier, P.D., „Media Reporting of Trials in France and in Ireland”, „Judicial Studies Institute Journal”, 2006.
13. Shahidullah, S.M., „Comparative Criminal Justice Systems: Global and Local Perspectives”, 2021.
14. Stahl, P.M., “Complex Issues in Child Custody Evaluations”, 1999.
15. Duncan, C., “Justifying Justice: Six Factors of Wrongful Convictions and Their Solutions”, „Themis: Research Journal of Justice Studies and Forensic Science
16. Schmechel, R.S., et al., “Beyond the ken? Testing jurors’ understanding of eyewitness reliability evidence”, “Jurimetrics”, 2006.
17. Garrett, B.L. & Neufeld, P.J., “Invalid forensic science testimony and wrongful convictions”, “Virginia Law Review”, 2009.

Received: 03.08.21, Ready: 11.01.22. Editors: Simone Redaelli, Robert Ganley