The presumption of innocence
Gene at osolaw.com
Sat Oct 29 15:08:18 PDT 2005
A grand jury proceeding is an atypically one-sided affair. Only the
prosecutor presents evidence and, in fact, the subjects of a grand jury
proceeding are often, but not always, unaware that they are the target
of the probe. It is not especially difficult to obtain an indictment,
so yes, an indicted party should be presumed innocent.
Ogborn, Summerlin & Ogborn, P.C.
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gene at osolaw.com
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Saturday, October 29, 2005 4:25 PM
To: conlawprof at lists.ucla.edu
Subject: RE:The presumption of innocence
From an op-ed by Lanny Davis in today's NYTimes:
And then, after reminding everyone that Mr. Libby is entitled to
the presumption of innocence, Mr. Bush should focus on the people's
business and the far more serious problems facing America.
What does it mean to accord Mr. Libby (or anyone else who is
indicted in a process that we find reasonably trustworthy) a
"presumption of innocence"? It surely means that he can't be jailed
until the state proves its case. But hasn't the Special Prosecutor
convinced a grand jury that there is at least "probable cause" (does
this mean that a prosecutor believe that it is more likely than not)
that Mr. Libby committed perjury? Are we genuinely to say that we will
isnore the material released in the indictment and assume that it's all
fabricated or the product of a prosecutor's fevered imagination? These
are in fact real questions, because I wonder how much sense such
legalistic notions make to ordinary people. (E.g., should we really
infer nothing if a person refused to take the stand? Perhaps the legal
rule is a good one, but it's not one we ordinarily apply in our everyday
lives. If we ask a friend how a dent got in the car we lent him, we
won't stand for, "I have nothing to say about that.") And, of course,
there's the obvious point that Mr. Bush accords no presumption of
anything other than complete guilt to Jose Padilla, an American citizen.
Why exactly is entitled to not a scintilla of that presumption and Mr.
Libby entitled to the whole thing?
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