Image 01 Image 02 Image 03

Congressional hearings and the presumption of innocence

Congressional hearings and the presumption of innocence

Topsy-turvy world

The presumption of innocence for the accused in a criminal trial is one of the main pillars of our criminal law. Its importance to our liberty cannot be overstated.

But Chuck Schumer wasn’t completely wrong when he indicated that there is no mandatory or official legal presumption of innocence in a setting like the Kavanaugh hearing:

“It’s not a legal proceeding, it’s a fact-finding proceeding…this is standard operating procedure,” Schumer said. “There is no presumption of innocence or guilt when you have a nominee before you.”

It’s true that such a hearing is not a criminal trial with a trial’s many built-in protections for the accused, including the presumption of innocence. But that’s actually irrelevant, because this was no ordinary congressional hearing for a nominee to the federal judiciary. Unlike Kavanaugh, a nominee does not ordinarily stand accused in such a proceeding, forced to listen to the charges against him uttered by a self-described victim, and left to be his own advocate in an attempt at self-defense before the world.

Last Thursday’s hearing didn’t require a presumption of innocence, but the problem wasn’t merely that the hearing lacked that particular presumption, the problem was that it actually flipped the presumption of innocence on its head. Although not a trial, it was a travesty of a quasi-trial in which it was the accuser who was largely given the protective kid-glove treatment, and the accused who was presumed guilty till proven innocent in a Kafkaesque proceeding in which basic elements of the supposed offense were not even named, such as date and place.

Senator Schumer can pretend that what happened to Kavanaugh was “standard operating procedure,” but of course it was not, and let us fervently hope it never becomes so.

What’s more, in a criminal trial, the presumption of innocence is accompanied by another standard: the necessity of proof beyond a reasonable doubt. But in the case of the Kavanaugh/Ford hearing, no proof was even offered, except for Christine Blasey Ford’s shaky and uncorroborated testimony, with many memory gaps.

Ford’s statement didn’t even meet the civil court test of preponderance of the evidence. Nor did it even meet any rational non-legal test. The only test it could possibly have met was that of the completely subjective and emotional, as I wrote here. That is not nearly enough.

The situation was described very well by Victor Davis Hanson:

The “process” of memorializing Ford’s testimony involved a strange inversion of constitutional norms: The idea of a statute of limitations is ossified; hearsay is legitimate testimony; inexact and contradictory recall is proof of trauma, and therefore of validity; the burden of proof is on the accused, not the accuser; detail and evidence are subordinated to assumed sincerity; proof that one later relates an allegation to another is considered proof that the assault actually occurred in the manner alleged; motive is largely irrelevant; the accuser establishes the guidelines of the state’s investigation of the allegations; and the individual allegation gains credence by cosmic resonance with all other such similar allegations.

And yet that is the world we have entered. That is the world Chuck Schumer would like us to think is “standard operating procedure”—at least, when the accused is a conservative.

[Neo is a writer with degrees in law and family therapy, who blogs at the new neo.]


Donations tax deductible
to the full extent allowed by law.


Well there was precedent…they tried something similar with Thomas and they took down Moore on another similar set of tricks.

So, standard operating procedure for Dems is to do this kind of crap. That shouldn’t be tolerated.

    Matt_SE in reply to healthguyfsu. | October 6, 2018 at 10:42 am

    I will again remind readers that the GOPe pretended to believe the accusations against Roy Moore because it suited them. Many of the SAME PEOPLE who gave a rousing defense of Kavanaugh did the opposite in the Moore case.

      Ragspierre in reply to Matt_SE. | October 6, 2018 at 1:01 pm

      The two cases are readily distinguishable. They bear almost no similarity.

      There was plenty of evidence against Moore, for instance. Among the most damning were his lies on the record.

      Moore had ample time to mount a defense if he had one. BK was blind-sided at the last moment…which, of course, was part of the plan. Delay of the process was fundamental.

        Mac45 in reply to Ragspierre. | October 6, 2018 at 1:32 pm

        No, there was actually NO evidence against Moore. And, there still isn’t any, except for the statement of the initial complainant. People try to make a case for corroboration of her statement because sh told classmates that she was dating an older man during the time frame which she specified. However, Moore was never named. Moore did have a history of dating women who were seniors in high school, of r just out of high school. However, none of those claimed any improprieties on Moore’s part and several gave glowing recommendations as to his behavior with them.

        What you have always based your assertion of Moore’s guilt upon is inconsistencies in HIS statements about peripheral subjects.

        There was never any credible evidence presented to corroborate the account given by the initial claimant, in the Moore case. Nor in any of the claims made by other claimants of impropriety. So, it all boils down to person believe based upon personal bias. Not on any credible evidence.

          Ragspierre in reply to Mac45. | October 6, 2018 at 1:39 pm

          No. He was not “inconsistent” about “peripheral” subjects. He lied. On the record. About core subjects.

          The people and courts of Alabama know all that.

        New Neo in reply to Ragspierre. | October 6, 2018 at 1:52 pm


        Moore won the GOP primary on September 27. The general election was scheduled for December 12. The allegations came out on November 9 via a story in the WaPo. It was past the time when Moore’s name could have been removed from the ballot by the GOP. It was very carefully timed and gave him very very little time to refute the allegations in any effective way. In addition, whatever “evidence” existed (and it was weak and irrelevant to nonexistent) was the yearbook, and his accuser stonewalled his request to allow him access to it so that an independent investigator could study it. She demanded a Senate hearing instead, which never happened.

          Olinser in reply to New Neo. | October 6, 2018 at 1:54 pm

          You forgot the part where she outright ADMITTED that’d she’d forged the signature but claimed that she only forged ‘part’ of it.

          Ragspierre in reply to New Neo. | October 6, 2018 at 2:01 pm

          You have a very selective memory on this.

          There wasn’t ONE accuser. There were several. There were also people who knew Moore was a creep very well at the time, and we have their evidence.

          You also may want to go back and refresh your understanding.

          IF you can’t distinguish between Moore and Kavanaugh, I can’t help you.

          I can. And I have. So did the people of Alabama, and the courts have and are.

    JusticeDelivered in reply to healthguyfsu. | October 6, 2018 at 1:23 pm

    What has bothered me for some time is an ever increasing number of people who feel entitled to break laws. Most certainly this has been a severe problem for some time in the black community, whose crime rate is more then seven fold normal. Most of that crime is by males, meaning that their crime rate is well over seven fold.

    Now we have women jumping on the bandwagon, apparently oblivious that at some point they are going to find themselves facing civil litigation and probably criminal prosecution.

    Both groups seem to unaware that they are squandering goodwill which they need in order to get the public at large to tolerate, to be willing to fund, things which they want.

    I have never bought arguments that abortion is wrong, I do not think that it is good public policy to force people to have children which they do not want, because such children are not likely to be raised well.

    Yet I have been a fan of Kavanaugh, in part because of this unjust attack and in part because I am willing to see Roe v. Wade overturned in the interest of reigning in order to checkmate the Democratic party. They have been making increasingly bad decisions for at least the past decade.

    Clearly, we have Trump because people are disillusioned with both parties.

We are already seeing this in how the Left wishes the Constitution and laws interpreted. Since the majority of laws have been passed by older white males, they are all suspect at best. Laws must be interpreted only in relationship to the accused or accuser’s victim/protected status. Ford’s testimony and now the web of Deep State involvement will be of little concern for the Left. Social Justice requires outcomes dictated by the Party line. We have seen this before and it does not work.

It may not have been a “legal proceeding,” but it was absolutely a trial, just like the Salem witch proceedings trials.

Willamette Week, the local birdcage liner weekly, got input from 10 women about Kavanaugh and not one of them even hinted at the existence of either presumption or due process. Their hatred and mob mentality had completely robbed them of the basics of civility.

The sad part is that they are oblivious to their level of bigotry, I guess a side effect of defining diversity as just hanging out with people who think like me, which was summed up best by an Oberlin student in 2016 who didn’t understand how Trump won because “I don’t know a single person who voted for him.”

I agree that the Left will use his appointment as justification for any and all anarchy in the future.

Oh, it was a de facto witch trial, complete with the presumption of guilt before any facts or statements were made, and a figurative burning at the stake as the only remedy.

Worse than pathetic.

    RNJD in reply to Dimsdale. | October 6, 2018 at 1:37 pm

    And wasn’t it appropriate that the only Senator to shut up the crazed loons was Lindsey Graham with his comment, “Why don’t we dunk him in water and see if he floats?”

OwenKellogg-Engineer | October 6, 2018 at 11:07 am

Right; sounds like a bait and switch kind of argument. The same could be said of a lot of Socialist/Communist regime ‘proceedings’ of the 20th Century:

But Chuck Schumer wasn’t completely wrong when he indicated that there is no mandatory or official legal presumption of innocence in a setting like the Kavanaugh hearing:

“It’s not a legal proceeding, it’s a fact-finding proceeding…
this is standard operating procedure,” Schumer said. “There is no presumption of innocence or guilt when you have a nominee before you.”

“But in the case of the Kavanaugh/Ford hearing, no proof was even offered, except for Christine Blasey Ford’s shaky and uncorroborated testimony, with many memory gaps.”

In other words, the lie Ford blasted publicly and the anti-Democrats swallowed without question.

I hope the GOP don’t give up on this because she and her attorneys and all parties who help cast this lie need to be prosecuted.

    In DC, right? Recall how many of the obviously guilty rioters at the inauguration were convicted: 0.

      JusticeDelivered in reply to Rick. | October 6, 2018 at 1:38 pm

      That is why the rules of engagement need to be changed for rioters. If they are doing anything which put other people at risk, assault,throwing Molotov cocktails or otherwise setting fires or looting, they should be shot dead.

      I cannot think of a better way to improve society.

      Communities would become better places as a result of such action, the gene pool would be improved, incidence of riots would fall and best is that communities could have wakes to celebrate the culling.

Any charges made against anyone, in a public forum, including a Congressional hearing, have to meet two tests. First, they have to be credible. Second, they have to be corroborated by some type of credible independent evidence. Otherwise, they are nothing more than slander.

In the case of Ford’s charges, they, on their face, were not credible. Ford’s testimony may have been compelling, but the charges were never corroborated, even by the witnesses which Ford provided. If Senator Feinstein had wished to bring these charges before the committee it could, and should, have been done confidentially. If there was any credence to them, the committee could have decided notify the WH that it would not vote to send Kavanaugh’s name to the floor for confirmation and he would have been withdrawn. By handling the matter as she did, Feinstein created a media circus which caused harm to Kavanaugh and Ford while slandering Kavanaugh.

What do we do about Christine Blasey Ford?
Normally I would say let it go but for two things.

1. Anita Hill. When it ended nobody believed her. Over the years she has morphed into this feminist icon that was done wrong by the Judiciary Committee. Do we want to let CBF have the same notoriety?
2. Her lawyers are already at it. They sent out a press release saying that at this point she doesn’t want to pursue the matter any further.

There has to be a presumption of innocence in a procedure like this for the very simple reason that if there is not, any nominee can be destroyed at any time based only on the fuzzy criterion of believability, which could be simply being a well coached accuser.

If Democrats win the House, will then then create a House Un-Feminist Activities Committee, with the authority to compel witnesses?

Or is it possible that at least some of them have enough self-awareness to see what they are becoming?