In the Chatham County courthouse in Savannah, Georgia for a DUI trial I looked at my potential jurors and then to Kat and back to the jurors and began.
In a minute I am going to ask you if you think Kat is probably guilty of DUI.
Some of you are afraid that you will give the wrong answer. Some of you think that he represents Kat. He does not want to hear that many of us think Kat is guilty. I know people are supposed to be innocent unless proven guilty. Even though I think it is likely that Kat is guilty, I probably better not raise my hand. Is there anyone here who is not having those kind of thoughts?
It’s OK to tell me if you think Kat is guilty. It’s normal. When we see a girl led away in handcuffs on the news, our first thought is not “I bet that girl is innocent.”
The only wrong answer you can give is an answer that is not true. Even white lies are not allowed in court. Now something you say may mean that you are not the right person to be on this jury. That does not mean you gave a bad answer. It probably means you gave a good, truthful answer.
When you hear about some celebrity being arrested for drunk driving, is there anyone here whose first thought is, “I bet that person is innocent.”
So…how many of you think Kat is probably guilty?
How many of you think Kat should get a fair trial?
You see the problem? Just because a police officer has arrested Kat, we think she is guilty. How can Kat get a fair trial if the jury starts out thinking she is guilty?
In America, our founding fathers were pretty smart people. Here is the answer they came up with to fix this problem.
- Juries must start out biased in favor of the accused citizen. they have to treat the citizen accused as innocent unless she is proven guilty.
- Juries cannot assume guilt in any way. The government has the burden to prove its case.
- The proof must be so strong that a reasonable person cannot doubt it.
- The citizen accused does not have to testify.
Some of you may think this sounds too technical. You may think, I am just going to use my common sense rather than follow these legal technicalities. Think about what that means. Common sense tells us that Kat is guilty from the start. Think of the celebrity being taken off in handcuffs. If you just go with common sense and do not require proof you are really saying that I am going to assume Kat is guilty rather than follow the law. We all agreed that this is not fair.
Presumption of Innocence
Earlier you told the District Attorney that you would be fair to both sides. Did you mean that you would treat both sides equal and not prefer one side to the other?
When we someone on the news being led away in handcuffs, or hear of the celebrity arrested for drunk driving, we don’t think: There goes an innocent person. Common sense tells us that person is probably guilty. We think that most people arrested for drunk driving are probably guilty. Does anyone disagree?
Matching Kat against the State of Georgia is not a fair fight from the start.
- The government can afford to pay lawyers to fight as long as it takes. They can make sure their lawyers are well trained for prosecuting DUI’s.
- If they need an investigator to help prepare the DUI case or testify, they can afford it.
- If they need to talk to a DUI expert, they have the money.
- They can afford DUI tests and machines that Kat doesn’t have access to.
- They can double-team Kat with DUI police officers if they want to. They can put two police officers on the case so that it is two against one for prosecution testimony versus the defense.
- They can double team the lawyer with lawyers if they want.
- They can afford to go to the legislature to lobby and have the DUI laws changed in their favor.
Who is stronger here? Kat? Or Georgia? Is it even a close contest? Does anyone think it is a fair fight?
From the minute someone is charged with DUI, common sense tells us that the person has a motive to lie. If the person says something that makes them sound not guilty, we are suspicious that she is making it up to get off. Does anybody disagree?
So we all agree that someone who has been charged with DUI has a motive to lie. On the other hand, the DUI police officer that arrested her normally does not have a motive to lie. Anybody disagree?
So, if Kat denies her guilt or tries to explain, we are going to be suspicious of her but not of the DUI cop who testifies against her. Anyone disagree?
So we start out thinking Kat is guilty and we do not believe her when she says she is not. How can anyone get a fair trial when we start out like that? Do you have any ideas?
Now in our everyday lives we think that if we were accused of something we did not do, we would just explain and people would believe us because we are honest people. Right?
What if you had to explain this to strangers in Savannah who do not know you and do not know you are honest?
Do you think the strangers would be suspicious of you because you would have a motive to lie?
Even if you brought in your friends to tell the jury that you are an honest person, they will be suspicious of your friends because they will think that they may be shading their testimony to help a friend. Even if you are honest, do you think a group of strangers will believe it?
So the government double-teams you with police. They double-team you with lawyers. They place you in a position where people are suspicious of anything you say or do and anything your friends say or do. They shove you in a position where most people think you are guilty from the beginning. They have almost unlimited funds and resources to prosecute you, but you have limited funds. Then you are expected to show you are innocent. Even Jesus did not do well when he was put on trial. My client is not rich. She is not Jesus. What hope is there for Kat to get a fair trial? Do any of you see a way?
Now, Kat does the best she can. But she is not in the same league as the State of Georgia. Matching her against the State of Georgia is truly David vs. Goliath. But, without the slingshot. It is a heavyweight in a boxing match against a twelve year old. That is not a fair fight. The government starts off with overwhelming advantages. Treating both sides the same is no more fair than treating the heavyweight and the twelve year old the same. Do you disagree?
If you go back and just ask yourselves which side is correct, that is not a fair question. The deck is stacked against Kat from the start. To get your vote, you are asking the twelve year old to beat the heavyweight. So what are you going to do?
Smarter people than I realized that treating the State of Georgia the same as Kat did not equal a fair fight. Experience has taught us over the years that if you do not build some protections into the system, you are going to end up convicting innocent people. To protect against this, some safeguards have been built into the law.
The government has given David a slingshot. It still may not be a fair fight, but it is better than before.
You Know the law’s fix. Kat is innocent unless proven guilty. It’s only fair to make it harder for the District Attorney to prove its case. Treating both sides equally in a mismatched contest isn’t fair. The law says you must start out biased in favor of Kat and you cannot change unless you are given the strongest proof known to the law.
Will you take back your answer to the District Attorney?
Will you tell him that you will not treat both sides equally? Will you tell him that you will start out on Kat’s side and that you will not change your mind UNLESS you are given the strongest proof known to the law?
The presumption of innocence is needed if there is to be a fair trial.