Garrett, G. P.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 7 | Issue 6 Article 71917False Presumptions Counter to the Presumptionsof InnocenceG. P. GarrettFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationG. P. Garrett, False Presumptions Counter to the Presumptions of Innocence, 7 J. Am. Inst. Crim. L. & Criminology 851 (May 1916 toMarch 1917)FALSE PRESUMPTIONS COUNTER TO THlEPRESUMPTIONS OF INNOCENCEG. P. GAmRT"American criminal procedure is condemned as ineffective, becausedelay and technicality intervene on behalf of the accused. The sanc-tion of the law is neither swift tior inexorable. Not only do "thewicked flee where no man pursueth," but the prisoner enmeshed ispreserved from punishment by over-sedulous respect for his rights.Mr. Justice Holmes, in his lectures on the common law, says that thelaw must express the prevailing sentiment of the community. Ourcriminal law is commonly supposed to do so, aid in consequence,critics and censors vent upon the community their japes and quirksat the present state of our criminal justice. Yet, in fact, our adminis-tration of the criminal law does not reflect or mirror the public mindupon the matter.Much of the practice, many of the forms, most of the rules andprinciples that are operative in the criminal courts to-day are theheritage of olden days. No adventitious condition of society, noephemeral fashion of manners finds immediate place in jurisprudence.On the other hand, be any condition of society but general and per-sistent enough, it will make the impress of itself upon the body of thelaw. Very many states of society, and innumerable aspects of eachstate have appeared, transpired and vanished, so that "the place thereofknew them no more," during the course of development of our systemof jurisprudence. Yet the traces of their life are visible in the struc-ture of our legonomy, as the traceries of ancient flora and fauna arefound imprinted in the deposits of phosphate that we are miningto-day. The courts are slow to assimilate the "spirit of the times."To commend itself to them, a custom or a usage, must be encrustedwith the hoar of age. Though we have modified the requirement thata practice must have existed since, "the memory of man runneth notto be contrary," we are still dubious to experiment with any coursewhich is not sponsored by tradition.Watch, therefore, the effects. Within two hundred and fiftyyears we have emerged from a barbarous code of punishment. Notmurder and not rape alone, nor even -other crimes of violence; buttheft, trespass and many similar minor infractions of the. law were1Member of the Bar, Kissimmee, Fla.852 G.P. GARRETTdenounced by the penalty of death. The branding iron, the pillory, theducking pond, and the whipping block, were the "terror of evil-doers,"aforetime. Convicts were burned. Convicts were attainted to thedisherison of their family. Wager of battle flourished and wager oflaw was in vogue. We subdued the transgressor with torture.The forces and influences that direct public opinion move, as someone has said, by oscillation. Put into action by some impulsion, theytend to continue in motion even after the. cause thereof has dis-appeared, and they are followed by a reaction, very nearly as violentas the original impact. Spencer has followed the law through all thephases of finite actions and reaction and deduces therefrom the datumthat all motion is rythmetic.Two hundred and fifty years ago England was not in a whollyungovernable state of anarchy. While the social status of the peoplewas crude beyond the present-day conception, and the theory of govern-ment was arbitrary beyond present-day tolerance, yet the relationshipof the parts of society to each other, and the functions and authority ofthe nation toward the individual were clearly, if roughly, marked out.The England of that day, however, was the product pf a turbulentpast. In the past, official tenure had been uncertain, official controlhad been imperfect. Respect had been induced by fear, and fear bysavage visitation. Kings had sat enthroned upon the battle shields ofthe barons, the barons had entrenched themselves in power by oppres-sion, and the commons had been as the beasts of the field, the allottedprey of church and state and nobility. The laws, framed to procure- some manner of harsh justice upon offenders in this uncouth age,descended to and were administered by the courts of the more settledtimes of the eighteenth century. It followed that these laws' were in-appropriate and obsolete. They were merely the over-swing of thependulum set in motion by the effort of rude masters to commandrespect. A milder judiciary were reluctant to enforce the excessivepunishment imposed.Out of this condition arose the tendency of the courts to safe-guard the rights and welfare of the defendants. To-day this attitude,which has persisted, under obviously changed conditions, is condemnedas over-zealous sentimentality. Formerly, however, when, once a manwas found guilty, he became subject to infamous and inhuman penal-*ties, it was commendable. The prisoner could not speak for himself.Often he could not have counsel. Yet conviction of a crime so trivialthat to-day it would be disposed of in Mayor's court meant possibleFALSE PRESUMPTIONS 853death or transportation. The end of the criminal sanction was stillmainly retribution. The principle of prevention was not emphasized,and the aim of reformation was without recognition.Americans now feel that the accused is a pampered being. Theyare positive that "the toils of the law" are ineffective. They look uponthe careful scrupulousness of the prosecutor as a laxity. They floutat the presumption of innocence. They urge that, by the time thatthe charge has been tested in preliminary hearing and grand juryroom, the probabilities of innocence are not rife. They cavil at theunanimous verdict. They protest against the indefinite power of ap-peal. They perceive in these implements of defense an unfair dis-crimination against the safety and well-being of the state. Theyconsider them inept. And, in many respects, their strictures are sound.Techhicalities are over-used. The unanimous verdict, at least in com-monwealths, where a jury of twelve must sit, is unnecessary and ex-pensive. Appeals perhaps should be restricted. "There must be anend to litigation," even where personal libetty is affected. In oneregard, however, the people as represented by the legislatures, in theirhaste to modernize the criminal law, are over-stepping their preroga-tive. When they make naught of the presumption of innocence, whenthey endeavor to destroy it, when they pass statutes that nullify it,they are trespassing upon forbidden ground. In all reverence, wemay give them the admonition of old, "Take thy shoes from off thyfeet, for that whereon thou standest is holy ground."We live by virtue of presumptions. They are the short-cuts toaccomplishment. Without them we would become so entangled in theminute difficulties of our daily round, that existence would be intoler-able and attainment impossible. And, ordinarily speaking, action basedupon presumptions is justifiable. We cannot check up as we go. Wemust take for granted, infer, presume. So. long as opportunity forverification exists, ellipsis of thought and elimination of intermediatesteps is commendable. So long-and no longer! As Herbert Spencerhas pointed out, the ability to verify is the extenuation for the failureto verify, and, when thought or action is founded upon data that can-not be proved the result is illusion.Presumptions, in and of themselves, contain no virtue and no vice.Justly drawn, they are advantageous, useful and inevitable. Wronglydrawn, they are mere insubstantial illusions.What the shadow is to the material object, so is the out~rard actto the motive of the mind or to a state of facts, namely, an index and854 G.P. GARRETTmanifestation thereof. Many legal presumptions arise from thissource. Tfiey are presumptions drawn from the evidence of an out-ward act, as to the motive, or the state of fact5 actuating that outwardact. If it is the common experience of humanity, that an act of acertain sort is accompanied by a definite state of mind or a definitestate of facts, it becomes a process of deduction, that, the act appear-ing, the state of mind or the state of facts exists.. Men constantly actupon such inferences. The law takes cognizance thereof, and observ-ing the act, raises a rebuttable presumption of fact as to the state ofmind of the actor, or the state of facts impelling the act. Followinga regular form of development, as this rebuttable presumption receivesmore and more invariable recognition in the courts, it becomes hard-ened into a rigid rule, and finally takes its place in the permanent bodyof the law as a conclusive presumption of law.If a presumption finds its way into the law through the regularroute outlined, there is little possibility that it will be vicious. Pre-sumptions are only vicious when they are illusory, that is to say whenthey are framed upon a false premise. Their justification lies only inthe probability of the actual concurrence of the state of mind or stateof facts, with the act in question. If this substance does not moreoften than not appear in conjunction with the shadow, all rules, basedupon their probable conjunction, are vain. So far as such illegitimatepresumptions are adopted as rules controlling the sanctions of the law,and operating to confine the liberty of citizens they are not only illu-sory, but vicious. The viciousness lies in their unjustifiable restraintol freedom of action.The presumption of innocence is an authorized and valid pre-sumption. It has not only the endorsement of a venerable life, but itis the ordinary guide of our daily lives. We all act upon it frommoment to moment. If we should abandon the principle that menprefer rectitude to wrong-doing, and that men do right rather thanwrong, and that crime is the exception instead of the rule, civilizationwould forthwith abandon us, and we should revert to savagery. Allour institutions are built upon it. We know its truth, by constantverification.Being a thing wholly true in itself, and the expression of an in-ference from a state of facts that shadows an actual state of mind,the presumption of innocence is essential to our law. "It is neither out-worn fior out-grown, and consequently, it belongs to us as a bulwarkof our liberty and should be preserved. Granting that the sanction ofFALSE PRESUMPTIONSthe iriminal law, as it has come to us from our fathers, is imperfectand must be refashioned, if it is to be suited to our *present sense ofjustice, and to modem public policy, yet in our haste we should nottear from our jurisprudence a tried and valued principle which em-bodies the most just conceptions of the present day. Correction ofthe old is not mere wanton destruction of all things resident therein.Distinctions yet remain between the weed and the flower, the tares andthe wheat.Ill-advised legislators, however, have not thought of these things.They hear the cry 'for retribution to the wrong-doer, and they heedit by seizing at random any weapon at hand. Because all evil-doersdo not suffer punishment, they conceive, in their haste, that the pre-sumption of innocence is detrimental to justice. And they ride forthto do battle with that presumption.The weapons that they wield against it are counter-presumptions.It may be doubted whether these are proper weapons under any cir-cumstances. Especially is this so when the counter-presumptions em-ployed are of the illegitimate variety, to-wit: when they are founded oninferences of fact, that cannot be verified, and connections of acts withstates of mind, which do not in reality concur with each other. If theact does not really mirror the motive, intent or state of mind presumed,the presumption is an offense to common sense and a danger to thepublic welfare.Yet presumptions of this character are being more and more em-ployed to contradict and neutralize the presumption of innocence. Forinstance, there is a law in Florida declaring, in effect, that the deliveryof liquor and receipt of money therefor shall create a prima faciepresumption of the guilt of an unlawful sale of whiskey. Test thisarbitrary rule by the dictates of common sense. As a matter of factand in actual cases, do the delivery of liquor and the'receipt of moneytherefor indicate a sale? The man delivering the liquor and receivingthe money may be either the agent of the buyer or the agent of theseller. The Florida court has decided that the agent of the sellermay be guilty of unlawful sale of whiskey, but not the agent of thebuyer. If he is the agent of the one he is innocent, if he is the agentof the other, he is guilty. Whose agent he is, as a matter of fact,depends wholly upon the details of the particular transaction. Con-sequently he is as likely to be innocent, as to be guilty. The outsider,seeing only the delivery of the liquor and the receipt of the money,and unacquainted with the facts of the agency involved in the transfer856 G.P. GARRETTobserved, is wholly unable to determine the guilt or innocence of theparties. The at is entirely equivocal. But the presumption is determi-native. Its effect, moreover, is to shift the burden of proof, and stripthe accused of the mantel of innocence. Under such circumstances,what becomes of the presumption of innocence? By the expedientof an illusory counter-presumption, it would appear to have beenwholly devitalized and nullified.We have given one example. All lawyers can, multiply others.We need not culmulate authority. The condition exists. Its results,upon presumption of innocence, are obvious.We hold a brief on behalf of the presumption of innocence. Itis one of those "red threads of abstract theory, stained by the bloodof centuries of human sacrifice, that runs through the warp and woofof civilization," beautifying and illuminating the whole fabric thereof.It has been written into the corpus of the law, at the behest of im-memorial experience. It carries with it the intrinsic worth of self-evident verity. All attacks upon it proceed from ignorance or van-dalism. We resent and deplore them. Especially,. however, do weraise a cry of warning, when we see pointed toward it the artilleryof error and darkness. In such artillery, one very effective batteryhas been found to be that of illusory counter-presumptions. This bat-tery must be silenced.We repeat as we began. No doubt the sanction of the criminallaw in the United States is imperfect. By all means let it be madeeffective. Do not let us, however, seek any panacea which costs us ourestablished safeguards of liberty. Else will "the last error be worsethan the first."

False Presumptions Counter to the Presumptions of Innocence

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False Presumptions Counter to the Presumptions of Innocence

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