Animosity Toward Kobe Bryant's Accuser
Is the Presumption of Innocence A Presumption of False Accusation in Date Rape Cases?

By SHERRY F. COLB

Wednesday, Oct. 22, 2003

Misconceptions abound when it comes to the presumption of innocence. One of them may surface in the extremely controversial Kobe Bryant rape prosecution. Some have suggested that the presumption of innocence, in a case like Bryant's, amounts to a presumption that the accuser is lying.

What the Presumption of Innocence Does, and Does Not, Mean

As I discussed in an earlier column, many non-lawyers (and even some lawyers) mistakenly hold the following view of the presumption of innocence: that unless and until a defendant has been proved guilty beyond a reasonable doubt to the satisfaction of a jury, he remains actually innocent.

On this flawed (and even preposterous) understanding of the law, no one may permissibly believe that a defendant charged with a crime is guilty, if a jury has not already so concluded. In truth, every one of us is free, both factually and legally, to think whatever we wish about the guilt or innocence of a defendant, regardless of what a jury has said or will say on the matter.

The presumption of innocence is a requirement that applies only to the members of a jury in a criminal trial. Even as to them, moreover, it does not dictate jurors' thoughts. It simply obligates them to select "not guilty" as their verdict if the prosecution fails to produce sufficient evidence to persuade them of a defendant's guilt beyond a reasonable doubt.

Members of criminal juries that ultimately acquit may and often do conclude, based on the evidence, that the defendant is actually guilty. That evidentiary reality is both unobjectionable and statistically inevitable, given the weighty burden of proof borne by the prosecution.

What the Presumption Requires of Jurors in Different Kinds of Rape Cases

A related notion regarding the presumption of innocence is that it obligates jurors and potential jurors to believe at the outset that a rape complainant is probably lying when she accuses a defendant of date rape.

Though "date rape" is not a technical legal term, I use it here to distinguish rapes in which the victim and perpetrator are acquainted with each other prior to the crime, from "stranger rapes," in which the victim first encounters her attacker at the time of the assault. Because there is virtually no risk of mistaken identification in cases of date rape, a conclusion that the defendant did not rape the complainant almost always carries with it the implication that the accuser has leveled a false accusation against the defendant.

Consider why this implication is almost inescapable in date rape trials. In a stranger rape case, the accuser ordinarily has selected the defendant out of a lineup or mug book as the perpetrator. To believe that the defendant is innocent in such a case accordingly does not require anyone to think ill of the complaining witness. The defendant's supporters, on the contrary, may (and most often do) believe the victim's account of being raped but believe as well that she is mistaken about who committed the crime.

Making an honest mistake is no crime, and it is therefore possible to view the defendant as innocent without viewing the victim as anything other than a sincere person and an actual victim (albeit of another perpetrator) who deserves justice. If the presumption of innocence demanded skepticism about the prosecutor's case, then, such skepticism would not involve thinking any less of the complainant's character in stranger rape cases.

Contrast this state of affairs with the date rape context. Here, the complaining witness and the defense typically agree that intercourse occurred between defendant and accuser. The main dispute is over whether the defendant acted with or without the accuser's consent. That is the case in the Kobe Bryant prosecution, for example.

Because the difference between rape and consensual sex is a memorable one for a victim, the defense is unlikely to propose that the complainant is simply mistaken in her recollection of what occurred between her and the defendant. The defense is far more apt to propose that any discrepancy between the defendant's and the complainant's versions of what occurred reflects false testimony on the part of the latter.

There is naturally no polite or sympathetic way to suggest that an accuser is making a false rape accusation. For that reason, a juror who interprets the presumption of innocence as requiring an attitude of skepticism and incredulity in the face of the prosecutor's evidence will necessarily adopt an unflattering and even hostile view of the complaining witness.

Some believe, in keeping with this reasoning, that it is incumbent upon jurors in date rape cases to approach the evidence with the assumption that the person who says she is a victim is actually a false accuser. If that were the law that applied to jurors, then no one could be blamed for regarding Kobe Bryant's accuser with suspicion and disbelief.

How the Presumption Allows Jurors to Come to Their Own Conclusions

As it turns out, the presumption of innocence requires no such thing of jurors. It does not tell the jury to assume that prosecution witnesses are either mistaken or lying. Like members of the public at large, the judge does not instruct jurors in a criminal case on what to think. Jurors properly instructed on the law are consequently free to accept any given witness's story.

In determining whether to believe a witness, jurors can thus rely on the witness's demeanor, his ability to respond to questions on cross-examination, and the overall plausibility of his account of the events in question. They can also take into consideration any systematic (or particular) biases that a witness brings to the proceedings. For example, jurors may permissibly consider - in weighing Kobe Bryant's testimony - the fact that he has an incentive to say that he is innocent, regardless of the truth; his freedom and his successful career hang in the balance.

In other words, the presumption of innocence does not require jurors to be any more skeptical of the prosecutor's witnesses than they are of the defendant's. They should approach all of the evidence with an open mind and bring their insight to bear on processing the testimony and evidentiary exhibits that they consider.

The presumption of innocence governs only the jury's answer to the verdict question. The jury must find the defendant "not guilty" if a fair and impartial consideration of the evidence leads the jury to conclude that guilt has not been proved beyond a reasonable doubt. When the prosecution presents witnesses in a stranger rape case, the jury does not have to presume that the prosecution witnesses are mistaken. And when the prosecution offers testimony in a date rape case, the jury is likewise not required to presume that the accuser is lying.

The reflexive hostility that some of Kobe Bryant's defenders have shown toward his accuser therefore exhibits no fidelity to the presumption of innocence. It instead prejudges the case before the evidence has been presented.

Of course, members of the public are free to prejudge the case on the basis of their emotional investments and blink at reality as they wish. But the one thing that a jury must never do is decide in advance to presume to reject testimony and evidence that it has not yet heard. And for any juror to presume that Kobe Bryant's accuser is lying is to do exactly that.


Sherry F. Colb is a professor at Rutgers Law School. Her prior essays on criminal law and criminal procedure issues may be found in the archive of her columns on this site.

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