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Follow on Google News | Flake's Flaky Reason For Supporting KavanaughPresumption of Innocence Applies In Criminal Trials; Different Burden Here
No Presumption of Innocence For Supreme Court Nominee While there may be many valid reasons, even absent political considerations and pressures, for Flake or other senators to vote in favor of the nomination, a "presumption of innocence" is not a valid nor a logical one, says the professor, because, as every law student knows, that presumption applies only in criminal proceedings. This is particularly true in this situation, maintains Banzhaf, because Flake's stated that he "left the hearing yesterday with as much doubt as certainty," apparently meaning that he has some reasonable and significant doubt as to whether Dr. ChristineFord's claim of a sexual assault by Kavanaugh was false. For example, in a civil proceeding, as well as in many agency proceedings, Kavanaugh or any other person would not be entitled to a presumption of innocence. If he were suing Ford in an ordinary civil suit - e.g., claiming that she negligently injured him, and that he was free from negligence - he would have no such presumption. Instead, he would have the burden of proof, and would in many cases have to prove his freedom from negligence by a preponderance of evidence. Even worse, were he to sue Ford for allegedly making a false claim that he sexually assaulted her, [defamation - libel and/or slander], he would not only lack any presumption of innocence, but would have to prove his case by clear and convincing evidence, an even higher standard. Similarly, in most states an applicant to the bar, seeking the privilege of practicing law, has no presumption of innocence. Instead, he has the burden of proving his good moral character (e.g, no prior wrongdoings) The standard applied by Flake, and perhaps also by other senators, is also highly illogical. To demonstrate this, assume that there is some credible - although very far from conclusive - evidence that a Supreme Court nominee had worked as a hit man for various crime syndicates. The evidence is somewhat short of that needed to meet the preponderance of evidence standard, but nevertheless enough to convince Senator X that there is a 25% probability of it being true. Since the consequences of having a hit man on the Supreme Court would be so horrible and unthinkable, Senator X would logically vote against the nominee because he can't afford to take even a 1-in-4 chance of having a hit-man serve as a justice. In other words, not only is there no presumption of innocence to justify a "yes" vote, the burden growing out of the credible-but- To bring the example closer to Flake's actual decision, there is now some credible evidence that Kavanaugh engaged in sexually inappropriate behavior as a drunken teen. While serious, it is obviously far less serious than being a hit man. Once again there should be no presumption of innocence. But here, because the consequence of possibly having a justice who committee an indiscretion (even perhaps a criminal one) is much less serious, the burden on Kavanaugh raised by the credible evidence would logically be lower - perhaps clear and convincing, or at least by a preponderance of evidence - but it would still exist, maintains Banzhaf. JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH), 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ End
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