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.