Reversing the Burden of Proof

In the United States, when it comes to criminal law, the burden of proof is on the accuser. What that means is, to use a common colloquialism, you are innocent until proven guilty. In defending yourself against criminal accusations, the burden is on the accuser (the government) to prove beyond a reasonable doubt that you committed the crime for which you are charged. You don’t have to prove anything (although it doesn’t hurt to do so). Not only does the accuser have to prove his case beyond a reasonable doubt, but twelve individuals all have to agree unanimously that he has done so.

If you, as the accused, have raised a reasonable doubt in the mind of just 1/12th (8.3 percent) of the jury, you go free. This hearkens back to the founders’ doctrine that it was better to let a guilty man go free than to ever take away the freedom of an innocent man.

Unfortunately, this doctrine isn’t always applied anymore.

The Sixth Amendment to the U.S. Constitution states clearly how criminal trials are to be handled in the United States:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

You might assume that this still happens. After all, high profile trials make the news all the time and we get to hear all about jury selection, reasonable doubt, probable cause, and so on. In general, major criminal proceedings do indeed still operate on a traditional, Constitutional basis. But if you think the Sixth Amendment is still in full force in the United States, you haven’t been paying attention.

Juvenile courts, for example, are charged with handling criminal proceedings relating to minors in most states. They are presided over by a judge who makes rulings unilaterally without a jury, their judgments are rendered in private, and no record of their proceedings is ever made public. “ . . . Public trial, by an impartial jury” indeed.

Have you ever received a traffic ticket? The traffic law burden of proof has been reversed; you are guilty until proven innocent. The police officer who issued the citation has judged you, charged you with a crime, and levied a fine that you are expected to pay unless you schedule a court date to fight it. You are expected to prove your innocence, and the citation issued by the officer is presumed valid. As if this wasn’t egregious enough, upon arriving at the court to try and prove your innocence you discover that traffic court operates jury-less just like juvenile courts. Your ‘impartial jury’ is, apparently, your prosecutor (the police officer who pulled you over) and the state-employed judge.

We don’t bat an eye at these unconstitutional affronts to liberty anymore, but we are on a slippery slope. For example, the Digital Millennium Copyright Act (DMCA) passed by Congress in 1998 creates a situation where anybody can force you or your Internet service provider to remove content from your web site until you prove that the content was legal. The DMCA was intended to give copyright owners a way to stop online copyright infringement, but we’ve set up a dangerous situation where a company can issue a ‘takedown notice’ without any legal basis, and your content disappears from the web until you take the time and effort to straighten things out.

Google, which receives such takedown notices all the time for content on YouTube and other Google web sites, recently made a filing in New Zealand regarding their efforts to establish a DMCA-like Internet Police State under ‘Section 92A’. In the filing, Google for the first time released some important DMCA statistics. Over 50 percent of DMCA takedown notices received by Google were from corporations targeting their competitors. Over 37 percent of notices weren’t even valid copyright claims. I suspect a significant number of claims even beyond those were of questionable veracity, targeting fair use and other legitimate infringement.

Once again, under U.S. law, you are guilty until proven innocent. The presumption is that the accuser—copyright holders, in this case—have issued a valid takedown notice, and you either prove them wrong or accept the punishment (removal of the content).

Does anybody else think it’s time to take back our liberty before it’s whittled away to nothing?

I weep for the republic.

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.