This an interesting perspective on divorce:
http://www.nytimes.com/2010/11/28/fashion/28Divorce.html?_r=2&ref=style
Check it now.
Sunday, November 28, 2010
Tuesday, November 9, 2010
Kentucky (and other) courts and the presumption of innocence – What do you know about the presumption of innocence?
By Stephen C. Emery
© February 19, 2002
Almost everyone is aware of the existence of what is called the presumption of innocence, but many know little about its origins and its historical application in criminal proceedings.
The United States Supreme Court, in 1895, held that it was reversible error in federal court to refuse to instruct on the presumption of innocence, if such an instruction is tendered by the accused - and that it was error to instruct the jury, under the circumstances of that case, that the burden had shifted and that it was incumbent upon the accused to show the lawfulness of their acts.
The importance of the presumption of innocence was clearly stated by the Court as follows: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."
While the origins of the presumption of innocence were said to be found in Deuteronomy, this remains unproven. That said, there is no question that the presumption was evident under Roman law. In 1895 the presumption of innocence was regarded as an evidentiary presumption of law. Two years later, the Court retreated from that conclusion.
Justice Reed, of the Kentucky Supreme Court, was probably most correct in referring to it as the "assumption" of innocence. In Kentucky, it is never proper to instruct the jury as to presumptions of law or fact, yet (oddly) Kentucky courts do instruct the jury on the "presumption" of innocence.
The presumption of innocence is not found in the text of the United States Constitution, but it is recognized as a basic component of a fair trial under our criminal justice system. However, the use of an instruction explaining its meaning to the jury was not always common practice in the state courts.
In 1895 Texas required its courts to state the presumption of innocence along with the doctrine of reasonable doubt, even in the absence of a request to do so. Indiana held it error to refuse to charge the presumption of innocence, if requested. Michigan held that the failure to mention presumption of innocence, when the doctrine of reasonable doubt was fully and fairly stated, was not error if no request was made for the charge. Ohio held it was not error to refuse to charge the presumption of innocence if the jury had been charged with a reasonable doubt instruction. In Kentucky, presumption of innocence charges were permitted, but not encouraged. The preferred practice was to give an instruction on reasonable doubt, only, in conformity with the Criminal Code.
The view held in Kentucky in the 1940's was that an instruction to the effect that the law presumes the innocence of the accused was simply too favorable to the defendant. As recently as 1977, it was well established in Kentucky law that as long as the trial court instructed the jury on reasonable doubt an instruction on the presumption of innocence was not necessary.
The long-held views in Kentucky changed only at the insistence of the United States Supreme Court in 1978, when it said that the Kentucky trial court’s refusal to give a requested instruction on the presumption of innocence resulted in a violation of the defendant’s right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. In this same year, Kentucky revised its criminal rules to include a presumption of innocence instruction for juries.
Now you know a little about the origins of the presumption of innocence and its application in criminal proceedings. Tell your friends, so they will understand where this all began and where it is today!
***If you are interested in a version of this article with citations to authority of law, just post your email and a request for the same. I will take care of it for you.
© February 19, 2002
Almost everyone is aware of the existence of what is called the presumption of innocence, but many know little about its origins and its historical application in criminal proceedings.
The United States Supreme Court, in 1895, held that it was reversible error in federal court to refuse to instruct on the presumption of innocence, if such an instruction is tendered by the accused - and that it was error to instruct the jury, under the circumstances of that case, that the burden had shifted and that it was incumbent upon the accused to show the lawfulness of their acts.
The importance of the presumption of innocence was clearly stated by the Court as follows: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."
While the origins of the presumption of innocence were said to be found in Deuteronomy, this remains unproven. That said, there is no question that the presumption was evident under Roman law. In 1895 the presumption of innocence was regarded as an evidentiary presumption of law. Two years later, the Court retreated from that conclusion.
Justice Reed, of the Kentucky Supreme Court, was probably most correct in referring to it as the "assumption" of innocence. In Kentucky, it is never proper to instruct the jury as to presumptions of law or fact, yet (oddly) Kentucky courts do instruct the jury on the "presumption" of innocence.
The presumption of innocence is not found in the text of the United States Constitution, but it is recognized as a basic component of a fair trial under our criminal justice system. However, the use of an instruction explaining its meaning to the jury was not always common practice in the state courts.
In 1895 Texas required its courts to state the presumption of innocence along with the doctrine of reasonable doubt, even in the absence of a request to do so. Indiana held it error to refuse to charge the presumption of innocence, if requested. Michigan held that the failure to mention presumption of innocence, when the doctrine of reasonable doubt was fully and fairly stated, was not error if no request was made for the charge. Ohio held it was not error to refuse to charge the presumption of innocence if the jury had been charged with a reasonable doubt instruction. In Kentucky, presumption of innocence charges were permitted, but not encouraged. The preferred practice was to give an instruction on reasonable doubt, only, in conformity with the Criminal Code.
The view held in Kentucky in the 1940's was that an instruction to the effect that the law presumes the innocence of the accused was simply too favorable to the defendant. As recently as 1977, it was well established in Kentucky law that as long as the trial court instructed the jury on reasonable doubt an instruction on the presumption of innocence was not necessary.
The long-held views in Kentucky changed only at the insistence of the United States Supreme Court in 1978, when it said that the Kentucky trial court’s refusal to give a requested instruction on the presumption of innocence resulted in a violation of the defendant’s right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. In this same year, Kentucky revised its criminal rules to include a presumption of innocence instruction for juries.
Now you know a little about the origins of the presumption of innocence and its application in criminal proceedings. Tell your friends, so they will understand where this all began and where it is today!
***If you are interested in a version of this article with citations to authority of law, just post your email and a request for the same. I will take care of it for you.
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