The Presumption of Innocence and ‘Making a Murderer’

In response to the wild popularity of the Netflix series, Making a Murderer, the Washington Post is running a series this week about the presumption of innocence for those readers who are hungry to learn more about the American criminal justice system. The Post invited me to submit a piece for the series and it is now available online.  Here’s an excerpt:

Casual observers of our legal system will sometimes say that they would never plead guilty to a crime if they were innocent. An easy claim to make — but it is another thing when your freedom is actually on the line.

Imagine learning that the government has a “witness” who is willing to tell lies about you in court. And then your own attorney tells you that his best advice is for you to go into court, say you’re guilty and accept one year in prison instead of risking a 10-year prison sentence should the jury believe the lying witness. It’s an awful predicament for innocent people who get swept up in criminal cases. As William Young, then chief judge of the U.S. District Court in Boston observed in a 2004 opinion: “The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

Everyone is generally aware that some criminal cases go to trial and others are resolved by plea bargains, but most folks have no idea how lopsided the American criminal justice system has become.  Only about five percent of the cases go to trial.  One law professor says that finding a jury trial is about as likely as finding a hippopotamus in New York City.  It’s not impossible…you just have to know where to look.

For related Cato work, go here, here and here.