Believe the victim is a term so commonly uttered in the context of sexual assault prosecutions that it’s approaching a cliche. But “one of the fundamental tenets of our criminal justice system requires that we start by believing, not the accuser, but the accused—a concept more commonly known as the presumption of innocence.” Colonel Daniel J. Higgins and Major Shad R. Kidd, USAF, Start by believing – the Accused, The Reporter Volume 41, Issue 2, at 16 (2014) (available here).

Using psychology as an example, the authors highlight the different between care-giving and truth-seeking:

“The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support. However, in forensic psychology the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee.” The goal is to develop evidence and work toward truth—whether that is easy for the patient to experience or not. Both roles are important. Both roles are necessary. But they are distinctly different roles.

Higgins & Kidd, supra at 18 (quoting Irving B. Weiner, ed. Handbook of Psychology, 4 (2003)) (emphasis in original). Applying these principles to military justice, the authors conclude that:

Air Force leaders, and those tasked to advise them, should first look to context. If the context is justice (e.g., determining disposition of allegations, trial matters), “starting by believing the victim” should have absolutely no place in their decision-making or advice. If, on the other hand, the context relates to Special Victim Capability (e.g., humanitarian moves, VA services), “starting by believing the victim” may be appropriate.

Higgins & Kidd, supra at 18. An anecdote highlights the danger of conflating criminal justice with :

The pressure felt by the special court-martial convening authority was evinced in the push note that accompanied his referral recommendation. He clearly recognized the weakness of the case (late reporting, no forensic evidence, alleged victim with a very poor character for truthfulness, etc.) and the likelihood of acquittal, but he wrote that the Air Force “owed” her a court-martial. His thinking, as should be obvious to anyone familiar with the basic precepts of criminal law, was completely off-base. The military justice system owes society justice and the accused due process; it does not “owe” an accuser a court-martial. This convening authority’s statement is nonsensical from a military justice perspective but understandable from a services or treatment perspective—the problem is that the note was written in a military justice context.

Higgins & Kidd, supra at 19.

The article concludes with a powerful call to action:

As the guardians of the military justice system, it is our duty to ensure we provide America’s Airmen a fundamentally fair and impartial process. Doing so requires that we ensure all Air Force members are properly trained that in the criminal justice context, we must all start by believing the accused and never vary from that presumption unless and until his or her guilt has been proven by legally competent evidence beyond a reasonable doubt. Permitting any training to undermine these guarantees would constitute a failure of our most fundamental duty as judge advocates.

Higgins & Kidd, supra at 19.

 

29 Responses to “Scholarship Saturday: Believe the accused”

  1. SgtDad says:

    Well, truly, & righteously said.

  2. DCGoneGalt says:

    http://www.caaflog.com/2014/12/05/rolling-stone-controversy/

    DCGoneGaltsays:
    December 6, 2014 at 9:13 AM

    The belief in the larger message is what justifies any action whatsoever to the Army of Subjective Reality, regardless of the issue or their political leanings.http://www.afjag.af.mil/shared/media/document/AFD-141126-035.pdfThe AF Reporter just published an article titled “Start by Believing the Accused” (if your head exploded just by reading the title then you really need to read the article) that encapsulates the issue perfectly. The article starts on page 19 of the PDF. It compares objective and subjective reality approaches to the issue that of clinical psychology and forensic psychology. I don’t think we need to start by believing anyone but should rather be an impartial decision maker based on the facts we have available. However, the points raised in the article are timely and need to be taken to heart.

     
    It was a good read from a court standpoint, where beyond a reasonable doubt is the standard.  But I still maintain investigators must start by getting the facts rather than “believing” in one party or the other.  However, I think the target audience was the POD-people inspired witch-hunt atmosphere and I know that among that crowd the article caused some splodey-heads when it came out. 

  3. Stephen Wilson says:

    To quote The sublime Inspector Clouseau: “i believe everything and i believe nothing. i suspect everyone and i suspect no one.” This should be the mantra for any inquiry, whether trying to find out how your kids wound up in a scrape or as part of a criminal investigation. 

  4. DCGoneGalt says:

    Stephen Wilson:  Instead of “I believe nothing” at the beginning, what we end up with is Sgt Schultz’ “I know nuttzing”.

  5. Stephen Wilson says:

    And then wind up with “The most uninformed person I know and the most determined to stay that way”? ???
     
    Said about Charles E. Wilson as Secretary of Defense and about John Warner as Secretary of the Navy (to keep this discussion in a military context?). 

  6. stewie says:

    Trust but verify, aka give the alleged victim the respect of taking a report seriously, but verify that you actually have the evidence before going forward.
     
    Not sure why that’s so hard.

  7. Advocaat says:

    From a strategic messaging standpoint, the Higgins & Kidd thesis was a great counter-attack to the ridiculous SARC song of “believe the victim” (which is also possibly Abba’s worst B-side track idea ever).  From a practice standpoint, I personally never equated the presumption of innocence with believing my clients and I instead subscribed to LT Kaffee’s philosophy:  It doesn’t matter what I believe, it only matters what I can prove (or disprove, or impeach, or invert, or erode, or counter with, etc.) in court.

  8. SgtDad says:

    Investigations are plagued by the problem of confirmation bias.  If one “believes the victim,” then one looks for & assesses evidence in that context.  And then there is the problem of altering the memories of witnnesses with interrogation techniques.  Prof. Elizabeth Loftus has quite a corpus on this.
    Finally, the incidence of exaggeration & fabrication in sexual assault cases is high.  The “victims” are encouraged in this by media, “counselors,” and healthcare types.  Add to that the fact that outright perjury in this context is never prosecuted.  The incentives to depart from the truthare huge.

  9. Zachary D Spilman says:

    Perjury is a big word, SgtDad. But there’s recent precedent for prosecution under Article 107 for making a false allegation of rape. See: http://www.caaflog.com/2015/03/24/a-false-accusation-of-rape-but-not-a-false-official-statement/

  10. SgtDad says:

    You are right, perjury is a big word.  That said, it happens.  And people continue to make false accusations of rape because it is effective and there are no consequences.   If Cpl. Joseph made a false accusation under oath, why is that not perjury? Let us also note the penalty Cpl. Joseph received for her evil act: not even reduce to private!!  What would have been the sentence visited upon her victim had she succeeded?  What would be (is?) the effect upon unit cohesion if false accusations are tolerated?
     
    What Gen. Woodward is trying to do is stack the deck against the accused.  This defies defendant’s due process right to a neutral decision maker & society’s need for fair proceedings.  The fact is trials are imperfect and errors abound.  Due process (e.g., burden of proof, presumption of innocence) are attempts to skew mistakes toward erroneous acquittals instead of erroneous convictions.  The only thing worse than being guilty of rape is to be innocent & still convicted because someone, like Cpl. Joseph, wants revenge.
     
    Lest you think I am heartless, just know that I am father & uncle to fine women.  I spent 20 years as a volunteer firefighter in a busy district.  I have attended women brutally raped; all the responders wanted to hunt the perps down & deal with them — me included.  But we did not & y’all know the reasons why.  And then there was the NVA & their savage use of helpless women & children (don’t get me started).
     
    I have also attended women who were doing just as Cpl. Joseph tried to do: create a record to visit revenge upon some man she was angry at.  They lied & connived and were never held to account.  So much for equal protection of the law.
     
    I have before me my grandfather’s copy of Blackstone.  Therein my grandfather & then my father have tagged Blackstone’s famous admonition: “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”  This was an animating principle of the Founders and, in fact, already well established in the common law when Blackstone wrote.  John Adams invoked the principle when defending the British soldiers charged in the Boston Massacre, as I vaguely recall from my grad student days.
     
    The fact is, nobody — nobody — is “entitled to be believed.”  Everyone’s testimony is subject to scrutiny & assessment by the finder-of-fact.  Is it lawful for a general officer to seek to have the jury pool pre-judge proceedings like this?

  11. DCGoneGalt says:

    The Daily Caller, which recently compiled stories of eight campus rape hoaxes,reports today that Gillibrand hopes such hoaxes shine “more of a spotlight on the problem” — not the problem of hoaxes, but the problem of sexual assault. Asked at the Women in the World Conference about rape hoaxes like Sabrina Rubin Erdely’s debunked account of a fraternity gang rape that was published and then retracted by Rolling Stone magazine, Gillibrand answers as if the assault actually happened.
     

    http://twitchy.com/2015/04/25/sen-kirsten-gillibrand-hopes-rape-hoaxes-shine-a-spotlight-on-campus-rape-epidemic-video
     
    Text messages, what text messages?  
     
    http://dailycaller.com/2015/04/24/the-text-of-the-mattress-girl-lawsuit-will-shock-you/
     
    This is who is leading military justice reform and no one in a position of real authority will stand up to her.  And that is why we are in the position we are in.
     
     

  12. ResIpsaLoquitur says:

    I believe that a lot of the “believe the victim” movement comes from prior instances–and I don’t know if these are anecdotes or data–that victims report and are ignored by the police and retaliated against by society, their command, whatever.  (I’m not agreeing or disagreeing with these anecdotes; I’m just saying they’re out there). 
    I think that what they’re really getting at is “take the victim (accuser) seriously.”  It would be tragic if someone who was raped reported it and was rebuffed by police while her attacked got protected well beyond the bounds of the system.  The problem that we’re pointing out is that it’s gone too far–“believe the victim” necessitates that the accused in disbelieved.
    A fair response is to tell people not to “believe the victim,” but instead to “take the victim seriously.”  But then, the court system should be taken seriously as well, to include the reasonable prospect that the “victim” is lying or mistaken, or also, that the victim might be telling the truth, but not enough information is available to secure a conviction without compromising the innocence of others.

  13. David Court says:

    All of the comments seem to be preaching to the choir (I did not notice anyone who appeared to be TC oriented).  The people who need to be reached are those who believed as did the LTCol Child Psychiatrist I encountered in a child abuse case.  It wasn’t just a matter of “if the child reports it, it must be true”.  This educated (well, she was a doctor) lady fundamentally believed that, if there were marks on the child, that was unimpeachable evidence of abuse.  She would not even budge at the hypothetical of forcefully grabbing a child by the arm, leaving marks, to keep the child from walking into traffic at an intersection.  Major Major (Catch-22) would have been proud of her.
    In a practical context, try using Higgins and Kidd’s article in cross-examination of every government expert, and giving it to every defense expert.  The former will probably have started from the “believe the victim” premise, the latter can incorporate it into the answer to any hypothetical question posed.  If your voir dire included questions about the panels’ willingness to consider that a report may be inaccurate (saying untruthful paints you in a corner before the first witness has been heard), and whether the panel believes that a female would only report a sexual assault if it were true (i.e., the panel believes a putative victim ab initio), your cross and direct will ring bells.
    CDC(Ret.)
     

  14. Phil Cave says:

    @Dave Court.
    Good to hear from you.
    Dave you are right with the honest experts and right about the dishonest experts who can tend to turn up for the gubmint.  Actually I did use the concept of confirmation bias and also how wrong the “believe” mantra is with cross of a government expert just a month ago.  She agreed with me and also helped me make the point to the members.  She even threw in something  further than I’d anticipated and talked about confirmation bias as leading to false confessions.

  15. Another Perspective says:

    I think stewie has got it right.  This whole “believe the victim” movement seems to stem from the reality that society treats sex offenses/allegations/trials differently than every other crime (except maybe domestic violence).  When a sex offense is alleged, society’s first reflex is to look at the victim and evaluate whether he/she is lying.  That is not so with other cases.  I think it would be a substantially lower percentage of people who would scowl at the victim of a burglary wondering immediately why they would lie about the allegation.  Until we as a society solve that disconnect, this tension between “believe the victim” and “believe the accused” supporters will continue.
    On a side note, I found the title of the article to be particularly though-provoking where many accused say nothing at all.  In any case, treat the allegation seriously, watch for and squash potential pretrial issues between the groups on either side of what happened, presume the accused innocent until proven guilty, and if proven guilty, punish appropriately.  Easy right?

  16. Yet Another Perspective says:

    Another Perspective said:
     
    “[S]ociety treats sex offenses/allegations/trials differently than every other crime (except maybe domestic violence).  When a sex offense is alleged, society’s first reflex is to look at the victim and evaluate whether he/she is lying.  That is not so with other cases.  I think it would be a substantially lower percentage of people who would scowl at the victim of a burglary wondering immediately why they would lie about the allegation.”
     
    There is no inconsistency here. Onlookers scrutinize every case the same way—by looking to the evidence. In a burglary case, locks are broken, there are pry marks on doors, stuff is demonstrably missing, etc. In an aggravated assault case, there are often compelling injuries and percipient witnesses. In a murder case, there’s almost always a body. In many sex cases, the word of the complainant IS the evidence. Given that onlookers scrutinize the evidence in every case, it should be expected that onlookers’ “first reflex is to look at the victim and evaluate whether he/she is lying.” When there’s no evidence aside from the word of the complainant, where else are onlookers supposed to look? Not only is this expected, it’s an appropriate and just approach given the presumption of innocence.
     

  17. iKennen says:

    Yet Another Perspective said:

    There is no inconsistency here. Onlookers scrutinize every case the same way—by looking to the evidence. . . . In many sex cases, the word of the complainant IS the evidence. Given that onlookers scrutinize the evidence in every case, it should be expected that onlookers’ “first reflex is to look at the victim and evaluate whether he/she is lying.” When there’s no evidence aside from the word of the complainant, where else are onlookers supposed to look? 

    Your point is well taken, of course.  The government’s evidence must always be viewed with skepticism at all stages of a criminal proceeding, including the investigation and bringing of charges.  When the government’s evidence consists primarily of the complainant’s testimony, then that testimony (and its source) needs to be scrutinized with an eye towards determining whether it is sufficient to sustain a conviction.  That includes inquiring into subject matter that victims rights advocates commonly object to and absurdly label “victim blaming” – such as searching for evidence indicative of the victim having a poor character for truthfulness, or evidence indicative of a victim who might not have a vivid recollection of the facts in issue, or circumstances which might have given the accused cause to reasonably believe the victim consented to the acts in question.  But, onlookers and those making charging decisions should make sure they look at the accused as well.  In many cases there is more evidence to be had than the word of the complainant alone.   In many cases the accused will have made statements regarding the facts in question to friends or family – investigators have only to find and ask the right person.  Accused persons may have also engaged in conduct that seems to demonstrate consciousness of guilt – investigators need only to recreate the accused’s actions after the alleged offense with as much detail as possible.  Certainly the accused is to be afforded the benefit of the doubt at trial.  Unquestionably.  But, at the investigation and charging stage, it would be a shame if investigators and prosecuting authorities (i.e., commanders) did not scrutinize the accused himself out of a mistaken belief that they are required to presume him to be innocent before he’s even been charged.  Giving an accused his or her due prior to trial is a balancing act – as justice always is.  An accused should not be harassed, should not have his rights violated, and should be treated with dignity and respect as all human beings should.  But, he is not entitled to be presumed innocent by the prosecutor (i.e., commander); he’s just entitled to be treated fairly.  That means he should not be made to stand trial on unsupportable charges, for sure.  He should also not be made to suffer punishment before any has been adjudged.  But, only the court is required to afford the accused a presumption of innocence.  A person is not entitled to such a presumption anywhere else in our society – including in the prosecutor’s (commander’s) office.

  18. David Court says:

    “But, he is not entitled to be presumed innocent by the prosecutor (i.e., commander); he’s just entitled to be treated fairly.  That means he should not be made to stand trial on unsupportable charges, for sure.  He should also not be made to suffer punishment before any has been adjudged.  But, only the court is required to afford the accused a presumption of innocence.  A person is not entitled to such a presumption anywhere else in our society – including in the prosecutor’s (command.r’s) office.”
    iKennen, so, since the presumption of innocence does not exist for you in society at large, you support prejudicial pre-trial publicity (journalists are not required to either be even-handed or presume innocence) and lynch mob justice (they are not a court of law having to presume anyone innocent), as well as commander’s inquiries (RCM 303) and Article 32 investigations (whatever they have become, they are not a “court”) starting with a confirmation bias? 

  19. Zachary D Spilman says:

    But, he is not entitled to be presumed innocent by the prosecutor (i.e., commander); he’s just entitled to be treated fairly. 

    Commander? You mean convening authority? Not exactly. Quite the opposite, in fact.

  20. iKennen says:

    David Court said:
     

    iKennen, so, since the presumption of innocence does not exist for you in society at large, you support prejudicial pre-trial publicity (journalists are not required to either be even-handed or presume innocence) and lynch mob justice (they are not a court of law having to presume anyone innocent), as well as commander’s inquiries (RCM 303) and Article 32 investigations (whatever they have become, they are not a “court”) starting with a confirmation bias?
     

    Pretrial publicity, I think, is only problematic if it prejudices the accused’s right to have the presumption of innocence in the court room.  Pretrial publicity that does not give the accused the benefit of the doubt, but which does not reach the court members, is not a problem.  In fact, I think it is protected First Amendment activity.  Concerning “lynch mob justice” … I hope there’s nothing I’ve ever said that makes anyone think I am an advocate for anyone taking matters into their own hands.  Before he can be punished, an accused deserves a fair trial, where he is afforded the presumption of innocence, and where the government must prove his guilt beyond a reasonable doubt (which I think means requiring a unanimous verdict before a panel of sufficient size and composition to engage in meaningful deliberations).  Concerning Article 32 pretrial hearings, I don’t think an accused is constitutionally entitled to the benefit of the doubt, though he is statutorily entitled to a fair determination as to whether there is probable cause.  I think those are different things.
    Zach, in response to my contention that convening authorities are not requried to presume the accused innocent, but merely are requried to treat him fairly, said:
     

    Commander? You mean convening authority? Not exactly. Quite the opposite, in fact.
     

    I’m not aware of cases establishing that a convening authority must presume innocence.  I honestly would love it if you pointed me to such a case or source.  I’ve been wrong many times before, will be wrong in the future, and would enjoy being wrong here.  I know a convening authority is required (and presumed) to act without personal interest, i.e., without bias.  But, I don’t think a convening authority is required to presume innocence in order to be unbiased.  I don’t think those two concepts are the same things.  I think prosecutors (a function performed by commanders/convening authorities in the military) are required to be unbiased.  That means they are prohibited from having personal or malicious or arbitrary motives.  I don’t think that means they are required to afford the accused the benefit of the doubt.  

  21. Zachary D Spilman says:

    I’m confident that a commander who has formed an opinion about the guilt of an accused is disqualified from serving as convening authority (a quasi-judicial position). I’d expect such a commander to forward the case for disposition. See R.C.M. 401 (and note that a “personal recommendation” as to disposition is required under that rule).

  22. David Court says:

    1)  Prejudicial pretrial publicity is just that:  Pretrial publicity which prejudices the right of the accused to be presumed innocent.  If it exists and does prejudice the general public’s perception of the situation, how can there be a fair trial in a court room where the jurors are drawn from that general public?  Mere pretrial publicity, without the modifying adjective “prejudicial”, is not a problem.
    I also see a conceptual difference between starting with a presumption that the suspect is innocent, and denying him the benefit of the doubt after looking at the evidence.  The latter means to me that I have a doubt he is guilty, but I don’t care about that doubt; the former is the foundation of my analysis before viewing any evidence at all.   
    2)  Case law supports the premise that an Article 32 Investigating Officer holds a quasi-judicial position.  I doubt that is intended to mean that the IO must have a quasi-presumption of innocence so that he is only required to give the accused the benefit of whatever doubt he finds after his confirmation-bias-laden investigation is complete.
    3) “Lynch mob justice” was intended as a cover-all phrase for taking matters into one’s own hands, e.g. mobs burning patrol cars, not only using the ole hangin’ tree.   Since I don’t know iKennen (at leasts not by that moniker), the lynch mob justice comment may have been unfair (and a denial of the presumption that (s)he does not harbor such thoughts).  However, where John Q. Public, outside of a court of law, denies a suspect the presumption of innocence while being exposed to prejudicial pretrial publicity, society is one step closer to a tacit approval of “lynch mob justice” than I think it should be. 

  23. El TC says:

    Well, if a commander who has formed an opinion about guilt is disqualified, that would prohibit one who started by believing the accused as well, wouldn’t it?

  24. Zachary D Spilman says:

    Of course not El TC. The Fifth Amendment is clear:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    Only the accused has a constitutional right to a fair trial.

  25. Sea Lawyer says:

    The Convening Authority must remain neutral and detached.  Just like an IRO, just like a PHO, just like a Military Judge.  To suggest that he/she is no longer neutral and detached by virtue of having formed an opinion on the guilt or innocence of the accused is a misstatement of the law (at best).  There is ZERO requirement in case law, statutory law, or regulation for the CA to personally presume (and maintain the presumption of) the Accused’s innocence.  The requirement is that the CA doesn’t have an “overly personal interest in the outcome of the case” else the CA be an “Improper Accuser.”  There’s a HUGE chasm between the CA believing an accused is guilty and conduct or state of mind by the CA equaling an overly personal interest in the outcome of the case. 
    The presumption of innocence is a legal barrier which must be overcome by the prosecution at trial beyond a reasonable doubt.  Nothing more.  It’s not a pre-trial or administrative right.  The judge might hear significant evidence pre-trial (through motions practice, e.g.) that causes him to form the opinion that the accused is guilty. [I’ll use the masuline tense for ease of analysis.] That doesn’t mean the government has met it’s burden, nor does it mean that the military judge is disqualified.  If the judge rules pretrial that the accused’s 17 confessions, in which he admits his guilt 17 times, were voluntary, the judge (unless he believes the accused to be lying, in which case he would have a duty to intervene) will necessarily have an opinion on the Accused’s guilt or innocence.  Again, that has nothing to do with the presumption of innocence which must be overcome by the prosecution at trial.  This is EVEN true if the Accused decided (for whatever stupid reason) to plead not guilty and be tried by a military judge alone.  The very military judge who has already seen and believed the Accused’s 17 confessions is not, by law, disqualified.  He remains neutral and detached, absent some improper conduct or statements by the judge showing evidence of bias against the Accused or DC. 
    What if a new judge presides over the bench trial and hasn’t heard the statements, but becomes convinced at some point prior to last syllable uttered by TC during rebuttal of the Defense’s case (if any) that the Accused is guilty.  By your rationale, the judge would be required to recuse himself from any further action in the case.  By your rationale, unless any judge disagreed with the jury’s verdict (but somehow the JNOV standard wasn’t met), such judge would be disqualified (as no longer being neutral and detached) from hearing evidence on sentencing.  There could be no guilty pleas, especially in the military, with it’s far more robust providence inquiry, because when the military judge finds the Accused guilty, he’s convinced BARD of the Accused’s guilt.  Again, by your rationale, he’s no longer neutral and detached…  Thus, he can’t award a sentence.  That’s obviously absurd.We could embark on the same journey for a PHO, or an IRO, or a CA.  The PHO would be no longer neutral and detached once hearing the government’s evidence at a 32 and becoming convinced of the Accused’s guilt.  Therefore, by your rationale, the his recommendation violates the law somehow because he’s no longer neutral and detached.  The IRO hears significant evidence that the Accused murdered someone, including, arguendo, the Accused admitting at the 305 hearing that he murdered someone, and then by your rationale, the IRO could not render a confinement decision because he’d no longer be neutral and detached… 
    It’s an absurd argument, which is a shame, because your initial point was valid. 

  26. SgtDad says:

    The presumption of innocence is a legal barrier which must be overcome by the prosecution at trial beyond a reasonable doubt.  Nothing more.  It’s not a pre-trial or administrative right.

    The presumption applies to all stages of the proceedings.  And initiating a prosecution without that presumption is, in my view, dishonorable.  The presumption of innocence is fundamental to justice in the common law and a necessary part of the prosecutor’s duty:

    The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

    Berger v US, 295 U.S. 78, 88 (1935). I would argue this duty would also apply to convening authority, if for no other reason than the baleful consequences to unit cohesion wrongful convictions can have.  And there is the simple matter of honor.
    The problem we discuss here is the very real risk of wrongful convictions.  Worse, the process being the punishment, wrongful prosecutions are themselves an affront to justice.  Finally, until a verdict is handed up or defendant makes a plea, the prosecutrix is not a “victim.”
    I will say one thing positive: at least the Marine Corps prosecuted Cpl. Joseph.  Out here she would have walked.

  27. Monday morning QB says:

    The presumption of innocence is a distinct and different issue from believing the accused.  We always start of with the presumption, but once the evidence comes in we start judging the credibility of people and that includes the accused.  Once he opens his mouth, he is treated like any other witness. 

  28. SeaLawyer says:

    [quote]The presumption applies to all stages of the proceedings.  And initiating a prosecution without that presumption is, in my view, dishonorable.  The presumption of innocence is fundamental to justice in the common law and a necessary part of the prosecutor’s duty:[/quote]
    No, it simply does not.  If it did, then no prosecution could ever go forward.  The Accuser swears to the charges that he or she believes the charges are TRUE.  This is typically done with the assistance of trial counsel (often by someone working for the TC).  The TC must have a good faith basis to believe the truth of the charges or it would be an ethical violation to proceed on the charges, even if ordered to do so (which is why the recently retired Army O-5 JAG made the right choice despite the Army being pissed about it).    Neither the TC nor the CA has any legal requirement to presume the Accused innocent.  Quite the opposite is true. 
    100% agree with the rest of your post though.  Too many TC’s develop an overly personal interest in the outcome of the case, frequently forgetting that their first duty is to justice, not to winning.  Same for the CA.  Unfortunately, Article 1(9) only applies to CA’s.  The best TC’s are the ones that retain objectivity, in part, because they seem the most reasonable to the jury.  I’ve had many a trial where the members afterwards said I (as DC) was the reasonable one, and the TC was the crazy one. 

  29. RKincaid3 (RK3PO) says:

    This is a logical tautology because it is impossible for BOTH the accused to be presumed innocent of committing a crime and the accuser to be presumed truthful in stating that the accused committed a crime.  Both cannot be true until one is refuted.  And since the former is a legal requirement and the latter is a political nicety (or “necessity” now), the latter fails and is trumped by the former, unless and until a fact finder concludes that the former is rebutted by the latter.  And the time and place for that is in the courtroom at trial, not in pre-trial or publicity proceedings.
     
    RIGHTLY SO!