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Monday, Jun. 17, 2002

On Thursday, July 11th, Allen Iverson--the Philadelphia 76ers' All-Star Guard and NBA most valuable player for the 2000-01 season--was charged with three felonies and assorted misdemeanors. Prosecutors say he threw his wife of eleven months, Tawana Iverson, out of their house, naked, and subsequently threatened several men with a gun in his efforts to locate her. One of the men gave an account of what happened in a 911 call in which he suggested that this was the third time Iverson had thrown his wife out of their home.

In response to the charges, Larry Brown and Billy King, the Sixers' coach and general manager, say they firmly support Iverson, reportedly emphasizing that he should be "presumed innocent" unless he is proven guilty.

Such statements, though quite common, misconstrue the role of the presumption of innocence in a criminal case and feed the mistaken belief--shared by many--that the Constitution requires everyone in the United States to presume that an accused criminal is actually innocent until a jury finds otherwise.

"Innocent Until Proven Guilty": Literal Truth?

Recall another celebrity athlete who stood accused of spousal violence. During the year-long circus that was the O.J. Simpson trial, I encountered two odd claims by non-lawyers (and some misguided attorneys) with whom I was acquainted.

The first claim was that Simpson actually was innocent, and would continue to be innocent, unless and until a jury brought in a guilty verdict against him. For all but those who take the radical (one might even say preposterous) view that the truth of an event from the past magically changes when the jury reaches a verdict, the phrase "innocent until proven guilty" cannot be taken as an accurate, literal description of reality. O.J. Simpson either did or did not kill Nicole Brown and Ronald Goldman, and nothing that a jury says later can factually alter that historical truth.

No Command for Non-jurors to Suspend Judgment

A second remark I encountered during the year that Marcia Clark and Johnny Cochran became household names, was that we all must suspend judgment about O.J.'s guilt until the jury reaches a verdict, with the implicit correlative that an acquittal requires all people to believe that O.J. was innocent. Neither of these positions has any foundation in law or logic.

An audience watching a television show like The Practice or Law and Order must await the end of the program to find out what "really" happened. That is because the shows are fictional, and what most viewers want to know is whether--in the script--the accused is guilty or not. Because the truth lives only in the imagination of the show's creators, it is appropriate for the audience to delay all conclusions until the end, relegating suspicions and beliefs to the status of guesswork until the dramatic, and often unexpected, denouement.

The Presumption of Innocence in a Criminal Trial

What then is the appropriate role for the presumption of innocence? In a criminal trial, the presumption of innocence is an important constitutional protection for the accused. It means that the jury may only pronounce the defendant guilty if the physical and testimonial evidence presented prove guilt beyond a reasonable doubt. Put differently, the jury must say "not guilty" even when it believes the defendant is guilty and often, it follows, even when the defendant in fact is guilty. Until the evidentiary threshold of proof beyond a reasonable doubt is reached, the judge and the Constitution order the jury to acquit.

The reason for this rule is that a guilty verdict subjects a person to incarceration, the deprivation of freedom that we all cherish and that is guaranteed us under normal circumstances. Though the acquittal of a factually guilty man is unfortunate and costly, it is an inevitable byproduct of a system designed to reduce to close to zero the odds that a factually innocent person will be convicted of a crime.

None of this, however, has anything to do with what the rest of us--the people of the United States who are not serving on a particular criminal defendant's jury--are obligated to think or say.

In the case of Allen Iverson, for example, the man who called 911 to report being threatened at gunpoint is under no obligation to presume Iverson's innocence. Indeed, if he takes the witness stand at trial and falsely recants his story as a favor to a friend (or as a loyal basketball fan), he will be guilty of perjury.

How to Interpret Inconsistent Verdicts

When O.J. Simpson was acquitted of murder and subsequently held liable for wrongful death in a civil trial, some people wondered what they were supposed to think. For those who would treat the jury as a font of truth, it was possible to reconcile the verdicts--the evidence might have proved that Simpson probably killed Brown and Goldman, but it was not quite strong enough to eliminate all reasonable doubt. Significantly, however, we need not view the verdicts in that deferential, crabbed way.

It is possible and even reasonable to reach other conclusions. One might conclude either that (a) the criminal jury erred in reaching its verdict; (b) the criminal jury disregarded the judge's instructions to find the defendant guilty if the evidence supported that verdict beyond a reasonable doubt; or (c) the criminal jury correctly reacted to the evidence admitted at trial, but other evidence that failed to make its way in--including, but not limited to, Simpson's flight from the police, threats of suicide, claims that he loved Nicole "too much," and the prophetic entries in Nicole's own diary--fill the gap between what the jury heard and proof beyond a reasonable doubt.

Notably, in the civil trial, Simpson was forced to testify and had no recourse to the Fifth Amendment, as he had in his criminal trial. That too could account for the divergence in verdicts. So could the fact that a photo of Simpson in the Bruno Magli shoes he had denied wearing was available at the civil, but not yet at the criminal, trial.

The Right to Think and Speak Logically, Outside the Jury Room

However one views the Simpson and Iverson cases, the Constitution does not dictate what we ought to think or say. Indeed, it protects those thoughts and statements, regardless of their content or viewpoint, under the First Amendment. We therefore need not limit ourselves in the ways the jury is limited--in terms of either the evidence we are allowed to consider, the threshold that evidence must meet before we draw a conclusion, or even our own default presumption.

You can presume that Allan Iverson is guilty as charged, in other words, subject to rebuttal by proof that emerges in the next several months. You can do that, based on logic and the evidence you already know about, along with the fact that thankfully, a relatively small proportion of people charged with crimes are factually innocent.

What you cannot do, consistent with the Constitution, is bring your logical presumption of guilt, your willingness to infer guilt on the basis of inadmissible evidence (such as Iverson's prior bad acts), or your readiness to "convict without a trial" into a jury room. In that room, where twelve people hold the power to deprive a person of her fundamental freedom from physical confinement, the law and the judge's instructions rightly govern our thought processes.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark and teaches courses in criminal procedure and evidence.

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