Presumed Innocent

Lessons for the Court of Public Opinion

The title of this piece is from the golden tread running through the criminal law. It is also the title of Scott Turow’s first book which was made into and excellent movie starring Harrison Ford. John Grisham’s first book “Time to Kill” - his best in my view - came out in 1989 and was made into a movie in 1996. I enjoy both Turow’s writing and that of Grisham. Grisham is more of a thriller writer whereas Turow is a true novelist. It is rather like comparing a good wine with an excellent champagne. Both enjoyable but the difference is in the quality.

This post will appear in Law News for 2 February but I am posting it here early - with some additional content - given the hearing date.

When a person is charged with a criminal offence that person is presumed to be innocent. What has been described as the “golden thread” running through the criminal law is that the prosecution must prove the guilt of the accused, and must do so beyond a reasonable doubt.

Those fundamental principles seem to have been lacking in the public and media treatment of Ms. Golriz Ghahraman. Initially there was a suspicion that she may have been involved in a shoplifting incident. I emphasise suspicion.

Suspicion is like a rumour – difficult to find a concrete foundation. Shakespeare has a direction Henry IV Part 2 Prologue Scene 1 which reads “Enter RUMOUR painted full of tongues” Rumour’s first two lines read

“Open your ears; for which of you will stop
The vent of hearing when loud Rumour speaks?”

That about says it all.

Then there was suspicion of a further allegation of shoplifting. Again, a suspicion only. No charges had been preferred.

What happened was that Ms Ghahraman was dealt with in the Court of Public Opinion. It would seem that the presumption of innocence doesn’t apply in that Court. Rather the social media mob presumed guilt. Ms Ghahraman wisely decided not to engage. The rules of procedure – be impartial before rendering judgment, hear both sides of the case, make a decision based on admissible evidence rather than rumour or suspicion – don’t apply in that Court.

New Zealanders like to pride themselves on their sense of fairness but the way Ms Ghahraman was treated by the press and the public was anything but fair.

“But what about the video?” do I hear you say. We know nothing of the provenance of that material. We don’t know the circumstances under which it was acquired. We don’t know whose hands it passed through before it appeared online. We don’t know if it has been the subject of manipulation or interference – all too easy in the digital age. Whether that footage is admissible in a Court of Law has yet to be considered. Clearly rules relating to verification and reliability of evidence don’t apply in the Court of Public Opinion.

But she resigned. Isn’t that enough? She may have resigned but at law she is still presumed to be innocent until she has pleaded guilty or has been found guilty after trial and convicted. Her resignation statement was unfortunately worded and from that wording an admission could be inferred. That possibly may be part of the evidence that the prosecution may present at trial or that may be considered by Ms Ghahraman’s legal adviser.

The criminal law is there for a reason. It is hedged around around with presumptions and rules of procedure and evidence – all designed to provide a framework where a contestable, dispassionate and fair analysis of the evidence may take place before a finding of guilt may be made.

The criminal law – indeed the Rule of Law in general – is to prevent mob hysteria in determining whether a person may have committed a crime. But many people do not understand that. The fact that a person is charged in the minds of many is sufficient to establish guilt – no presumption of innocence there. And when an accused is acquitted it is because he or she had a “smart lawyer”, that there was some trick that was pulled or that the accused “got off”. Behind those last two words is clearly a presumption of guilt.

Ms Ghahraman is entitled to her day in Court where she can face the charges. She can put the prosecution to the proof if she so desires. She remains innocent until a finding is made otherwise.

And as for the Court of Public Opinion – perhaps a course in civics should be part of the education curriculum so that more respect for the Rule of Law and the processes of the Courts are inculcated. And most importantly an understanding of the golden thread of the presumption of innocence.