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Posted by on Feb 1, 2018 in Law, Media, Society | 0 comments

Presumed Guilty

Americans are making a judicial assumption paradigm shift. We are moving from ‘presumed innocent and proven guilty’ to ‘presumed guilty and proven innocent’. Or, to say it differently, now the accusation is automatically both the evidence and the conviction. This shift goes against our longtime judicial system, based on English common law. Our judicial inheritance included these building blocks: the presumption of innocence, habeas corpus and other rules of admissible evidence, and a trial before an impartial judge or jury. They are the backbone of our judiciary and our democracy. This is not to say that our judicial system is perfect- far from it. The system is often slow and ponderous.

Mistakes can be made: The innocent can be found guilty and the guilty can be found innocent. Sometimes judges and juries are not impartial; they can be swayed by their own biases and tempted by corruption. Nonetheless, it is hard to imagine a better judicial system for a democracy.

However, here in the now of the 21st Century our 235 year old judicial system seems very ‘old school’ to those who think that 24-hour electronic news, the Internet and social media are the fonts of all wisdom. Following the rules of admissible evidence seems very arcane and unnecessary when guilt is perceptually obvious, based on the opinions of tens of thousands of social media users. How have we come to this? A combination of reasons: our growing contempt for democracy, the human judgment process, the media negativity bias; and political correctness.

First, and most all-encompassing, some Americans perceive that democracy itself is suspect and contemptable- all politicians are crooks, elections are rigged, voting is pointless, and our dated judicial system is hopelessly inefficient. More specifically we humans have a difficult time withholding judgment when we meet or learn about someone for the first time. Instead, we immediately decide whether someone is good or bad, competent or incompetent, likable or unlikable, guilty or innocent, even though many of these quick judgments are inaccurate. The new Internet/social media based judicial system is a perfect fit for our preferred method of judging others.

The news media negativity bias focuses on blood, violence, war, crime, accidents, natural disasters, corruption, scandals, and yes, accusations and assumed guilt- anything that emphasizes the negative side of life. Political correctness, which arose out of a noble effort to combat unfair discrimination, has now tipped the scales of justice in favor of presumed victims. A reason for this tipping is the naïve belief that people only make accusations when they have actually been victims- otherwise, why would they ever make accusations?

Other possible reasons for accusations are not even considered in the court of public opinion, such as: personal or ideological dislike of the accused, or personal envy of the accused; the desire for instant celebrity and fame; and of course copycat/me-too-ism. All very human motives for accusing another person, having nothing to do with perpetrating a particular act.

In the new judicial system we are all judges. Individuals are now accused and simultaneously convicted in print and on the air. The consequences of media conviction are loss of employment, tarnished reputations and social stigmatization. Thankfully one aspect of the old judicial system that has not yet been taken over by the new is the possibility of actual incarceration.

In the future will the ‘old’ judicial system ever be entirely eliminated, with the ‘new’ judicial system officially taking its place? It seems unlikely as long as we remain democratic. However, the new media-based public opinion judicial system is not going away either. Thus we will have two competing judicial systems based on opposite assumptions about innocence and guilt, which will only add to American confusion as we lurch through these uncertain times.

Anthony Stahelski can be reached at [email protected].