Wendy McElroy has an excellent column up today on FoxNews, Media Fails Public in Jackson Case, in which she distinguishes between the legal presumption of innocence and public opinion.
As McElroy notes, “There is no presumption of innocence in the court of opinion. That’s a legal principle: A criminal defendant may not be convicted unless guilt has been proven beyond a reasonable doubt, with the accused bearing no burden to prove innocence.”
However, “The court of opinion can convict anyone on any basis. Issues of common decency certainly apply but everyone quite naturally speaks from their own concerns and opinions. This is healthy. This is human.”
This is a careful distinction not always maintained even by libertarians, who seem to think even aggressors are “innocent until proven guilty.” No, an actual aggressor is not innocent; he has just not been proved guilty yet. The presumption of innocence is merely a way of saying the state has the burden of proving someone deserves punishment; it does not imply that a criminal is “innocent”. The presumption of innocence is merely prophylactic and is meant to protect the actually innocent, not the actually guilty.
If you catch someone red-handed committing a crime, we can presume they are guilty. This is in fact why self-defense is permitted–the victim is a direct witness to the crime being perpetrated, and need not “presume” that the criminal is “innocent”. If it were possible to push a button and infallibly cause every criminal to explode at the moment of committing a crime, without due process, without a presumption of innocence, without mercy, this would be perfectly fine. The law sometimes prophylactically protects actual criminals as the price of limiting the powers of an even greater criminal–the state; but libertarians should not take this to mean the criminals are somehow innocent just because the state has been rendered unable to convict.
3:38 pm on December 2, 2003
