The Right of Silence, the Presumption of Innocence, the Burden of Proof, and a Modest Proposal: A Reply to O'Reilly
Ingraham, Barton L., Journal of Criminal Law and Criminology
In the Fall 1994 issue of this Journal appeared an article by Gregory O'Reilly(1) commenting upon a recent amendment of English criminal procedure which allows judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's failure to testify at his criminal trial in certain specified circumstances.(2) Joining English critics of this change in the law, O'Reilly, an American lawyer, argues that this amendment of English criminal procedure does the following: (1) it reverses a long history in English jurisprudence guaranteeing an accused person's right to silence in the face of a criminal accusation, (2) it degrades the presumption of innocence, the foundation principle of Anglo-American accusatorial criminal law, (3) it moves that accusatorial system of justice toward an inquisitorial system, (4) it does not achieve its desired objectives of increasing confessions and admissions during police investigations, the likelihood of obtaining convictions, and the consequent reduction of crime.
After reading O'Reilly's article, I was impelled to write this reply, not only because I objected to its exaggerated tone and its perpetuation of certain myths about the English and American "accusatorial" system of justice versus the European "inquisitorial" system, but also because I believe that the time has come for Americans to begin to question their legal system--especially their criminal justice system--and the assumptions on which it is based. One of the most fundamental assumptions we must question is that the American doctrine of "the presumption of innocence" (which I will endeavor to define in the next section of this paper) is a doctrine which accords with a morality to which most Americans subscribe. From this doctrine emerge many ancillary doctrines, such as our notion as to who bears the burden of proof or production and which standard of proof should govern.(3) The American doctrine of the accused person's "right of silence" and the almost absolute protection the doctrine offers to prevent adverse consequences from exercising this right are also derived in large part from the presumption of innocence. This Essay will argue that these ancillary doctrines, too, are morally questionable.
The moral position that American lawyers take in determining criminal responsibility--and in a similar manner, civil tort responsibility--is taught in law schools and becomes part of virtually every American lawyer's moral outlook. This moral stance, I believe, is alien to the average lay person's approach to the same issues and problems.(4) It takes a considerable amount of sophisticated exegesis and constant repetition to convince the ordinary lay person of the rationality and morality of these viewpoints.(5) However, these arguments, boiled down to their essence, often are little more than appeals to tradition ("This is the way we have always done things in this country"; "This way is hallowed in tradition, was instituted by our Founding Fathers in our Constitution"; etc.); by appeals to authority ("This way has been decreed by the Supreme Court of the United States"); or by bogus appeals to our xenophobia ("Our way stands in stark contrast to foreign methods of procedure and we all know what despots they are"). Perhaps the lay person's perception that many of these doctrines make no moral or practical sense is right and American lawyers are wrong. This possibility is one which this Essay asks the reader to consider seriously.
In an effort to commence this re-examination, this Essay prefaces specific criticisms of the O'Reilly piece by defining "the American doctrine of the presumption of innocence." Next, this Essay will define certain central concepts of the criminal law and moral responsibility for criminal acts ("accountability," "responsibility," "culpability," and "guilt"). These concepts reflect on the presumption of innocence and its ancillary doctrine of the "right to silence" and the burden and standards of proof, in order to allocate more fairly between prosecution and defense the burden of proof. …