Presumed Guilty

The Criminal Law Bulletin, Volume 49, Issue No. 6, (2013)

UALR Bowen School Research Paper No. 12-07

58 Pages Posted: 18 Aug 2012 Last revised: 18 Nov 2013

Terrence Cain

University of Arkansas at Little Rock - William H. Bowen School of Law

Date Written: November 17, 2013

Abstract

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the person is guilty or not. By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof. These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict. The Supreme Court has heard this argument before and rejected it. It has not, however, reconsidered it in the aftermath of its decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker. These cases breathed much needed new life into the Sixth Amendment jury trial guarantee, and in the process put an end to a two decade legislative encroachment on the jury’s historic function as the sole arbiter of whether the government has proved all the essential facts necessary to convict a person of a crime. Apprendi, Blakely, and Booker cast doubt on the validity of statutory presumptions in criminal cases. This article will explain why that is so.

Keywords: Fifth Amendment, Sixth Amendment, Fourteenth Amendment, Criminal Procedure, Jury Trial, Jury Instructions, Due Process

Suggested Citation

Cain, Terrence, Presumed Guilty (November 17, 2013). The Criminal Law Bulletin, Volume 49, Issue No. 6, (2013); UALR Bowen School Research Paper No. 12-07. Available at SSRN: https://ssrn.com/abstract=2131541 or http://dx.doi.org/10.2139/ssrn.2131541

Terrence Cain (Contact Author)

University of Arkansas at Little Rock - William H. Bowen School of Law ( email )

1201 McMath Street
Little Rock, AR 72202
United States

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