Appellate Law

NDAA: No presumption of innocence if prosecutor presents any evidence

By S. COTUS

The National District Attorneys Association seems to be particularly riled up about judges prohibiting the use of certain conclusory legal terms in testimony.  Tresa Baldas of the National Law Journal gives them a platform to peddle their silly political lines.  Tnx (Crim. Prof. Blog -- which doesn't seem to accept dissenting comments.)

Now, as we described here, Wendy Murphy can?t be taken seriously.  But, seem to imply that prosecutors are waiting for a Federal Court to somehow order District Courts alter their rules of evidence to allow witnesses to say what they want.  Whatever the case, I don?t take Murphy seriously.

Then, ?First Amendment lawyer Rex Heinke, a partner in the Los Angeles office of Akin Gump Strauss Hauer & Feld, wonders where all this is going. ?It strikes me as a little odd that you can't use that term [rape]," he said. "Does that mean you can't use murder, robbery, breaking and entering???

Is this really Heinke?s legal analysis?  He is really arguing that there is a First Amendment right during a criminal trial for any witness to say anything he wants?  Heck, Why doesn?t Heinke argue that ANYONE has a right to say anything they want any a criminal trial regardless of who they are?  Whatever the case, Heinke?s legal analysis seems embarrassingly thin. (If he was quoted out of context, I invite him to leave a comment.) 

But, I expected more from James Fox of the NDAA.  He says, "I'm sorry, but the presumption of innocence argument only lasts as long as there's no other evidence to the contrary."

This simply is not the law.  The presumption of innocence NEVER goes away.  The burden of proof never shifts.  Is he really saying that so long as a prosecutor presents ANY evidence that the presumption of innocence evaporates and a defendant must prove his innocence?

Again, if Mr. Fox was quoted out of context, I invite him to leave a comment, which I will prominently feature.

Full post as published by Appellate Law and Practice on June 20, 2008 (boomark / email).