Presumption of Innocence

Accusations of a sexual assault against Supreme Court nominee Brett Kavanaugh when he was a high school student has some people declaring that he should be presumed innocent until proven guilty.

The presumption of innocence is a proper principle in a criminal courtroom and, if Kavanaugh were on trial, this would be a proper instruction for the jury. The reason for this is to prevent the State from railroading political opponents by having them arrested an imprisoned on trumped up charges. One has to be convicted by a jury of the people.

However, this is not an appropriate standard outside of the courtroom. If you were interviewing tutors for your young child, you would not be obligated to assume they were innocent of all crimes and accusations until you proved them guilty. If you were buying a house or a car, you are not obligated to assume that the seller is being entirely honest until you can prove a lie. If you were being asked to invest in a company, you are not required to assume its profitability until you prove that there is a flaw in its business plan.

Outside of the courtroom, we are entitled to use a different standard of evidence. Sometimes, people may even be required to prove their case while we have a right to begin with skepticism. Such is the case when somebody wants to sit on the Supreme Court.

Indeed, even in the case of civil trials, the standard of presumed innocence does not apply. They use “preponderance of evidence”.

This is not to deny that there may be bad reasons for drawing one’s conclusion. A person can be condemned for being too quick to judge a person guilty because of that person’s race, gender, or party affiliation. One may not have an obligation to presume innocence, but they do have an obligation to apply their standards based on actual evidence, and not on prejudice and bigotry.

Indeed, people in both parties tend to be too quick to declare fellow party members “innocent” and members of the opposing party “guilty”. People should strive for consistency. People should ask, “What would I say if the accused was a member of my party?” Or, where the accused is a member of one’s party, “What would I say if the accused was a member of the opposition party?”

Consistency matters.

In desirism terms, the above analysis compares the "aversion to intentionally causing harm" which people generally have reason to promote universally, with a range of "permissible" interests.

"Permissible" interests are those that people generally do not have reason to promote universally, or to inhibit. They include such things as interests in how to dress, where to live, what profession to go into, what to have for supper, what movies to watch, and where to shop.

Permissible interests feed into decisions about who to hire for a position.

Criminal punishment identifies a set of cases where the aversion to intentionally causing harm gets overridden by greater concerns - to provide deterrence and to teach aversions to even more harmful actions such as rape, murder, theft, assault, fraud, and the like. We respect the aversion to causing harm with a presumption of innocence. In the case of choices made on the basis of permissible interests, there is no "causing harm" in the relevant sense, thus no presumption of innocence.

Yet, we also have reasons to include, universally, aversions to counting race, gender, and, in some cases, party affiliation among the permissible reasons for making a decision. Where serious accusations are used as a reason for action outside of a criminal court, there is still an obligation to base one's acceptance or rejection of those accusations on the evidence. Even though sufficient evidence to clear the "presumption of innocence" standard is not required, race, gender, and party affiliation are not evidence.