Elizabeth’s Justice Reform Ideas Part I: Protection of the Presumption of Innocence

Issue: Justice Sol Wachtler, then the chief justice of New York's Supreme Court, said “Any good prosecutor can get a grand jury to indict a ham sandwich.” Once a person is indicted, their life is shattered. They lose their bank accounts, their job, their freedom. They are in practice assumed to be guilty by society.

Action: If we are presumed innocent then Defendants in federal proceedings must be able to present their defense in Grand Jury proceedings. It cannot be that the pivotal decision of indicting an American rests in hearing a prosecutor's argument without the defendant ever being able to present the other side.

Issue: Exposure to 21st century media on a case makes it almost impossible for a juror to be impartial.

Action: Jurors should not be able to sit on panels when they have already had media exposure to a case, and must be more thoroughly vetted by our Judges for biases.

Issue: Our Constitution requires jurors be our peers. In today's world many cases are highly technical, and require a certain background level of understanding.

Action: Jurors must be vetted for the baseline levels of understanding required for complex technical proceedings.

Issue: It is very difficult for defendants to discover Brady material -- material that is potentially exonerating -- in a case.

Action: If we are presumed innocent, Americans should be granted subpoena power to access Brady material, and should be given broader discovery powers.

Issue: Many federal enforcement proceedings have been held before Administrative Law Judges who report into the very agency prosecuting an American. We are entitled to an independent judiciary.

Action: All federal law enforcement proceedings must occur in federal court and not through an Agency's own Administrative Law Judges -- in the independent judiciary.

Issue: Those presumed innocent are not allowed to interact with any potential witnesses in a case. Prosecutors are allowed unlimited interactions, that often go on for years before a trial.

Action: We must require all prosecutor - witness interactions to be disclosed.

Issue: If a person is innocent, they are innocent. But today there are time limits that make it increasingly difficult to submit new evidence proving innocence and wrongful conviction.

Action: Our standards should be written in favor of the presumption of innocence. We must remove time limits creating barriers to the admission of new evidence to prove wrongful conviction.

Issue: Defendants cannot admit their own statements at their own trial, but prosecutors can. If Americans are presumed innocent, the Rules of Evidence must favor that presumption.

Action: Americans have a right to submit their own statements in their own defense.

Issue: Prosecutors introduce accusations at trial that is not in the indictment, and can confuse the jury in deliberating on a person's innocence. This conduct is not vetted in the same way as charges in the indictment, and not subject to the same Rules of Evidence.

Action: Uncharged 404b conduct may not be admitted against a defendant at trial. If prosecutors are going to make a charge against someone, it needs to be in the indictment they file.

Issue: A criminal conviction rests on a personal having the intent to act criminally - beyond a reasonable doubt. Prosecutors often confuse or minimize this issue at trial.

Action: We must strengthen the rules ensuring the intent requirement and associated proof is fully explained to the Jury before trial, during trial, and in Jury instructions.

Issue: Prosecutors often use "conspiracy" charges to capture conduct for which they don't have direct evidence or proof. This charge then becomes a pull through at sentencing of charges a defendant may be acquitted on, meaning they are sentenced on conduct for which they were in fact acquitted, because of the conspiracy charge.

Action: We must strengthen the rules ensuring the burden of proof on conspiracy charges is fully explained to the Jury prior to trial, during trial, and in Jury instructions.

Issue: Jurors are often reticent to raise issues threatening the integrity of the trial, such a media exposure during trial. 

Action: We must create an incentive system to make jurors comfortable with raising issues that affect trial integrity.

Issue: There is no real consequence for prosecutorial misconduct, even when people's very liberty is wrongful taken.

Action: We must increase penalties for prosecutorial misconduct, and remuneration of wrongly incarcerated exonerees.

Issue: Americans have a Constitutional right to cross examine a witness and the evidence presented at trial. That provision is often ignored by the process and deemed harmless. It isn’t.

Action: Defendants have a fundamental right to cross examine witnesses. Due Process violations cannot be dismissed and ignored by the court as harmless.

Issue: Evidence is often admitted improperly by prosecutors and then struck from the record. However, it remains in the jury’s mind.

Action: Americans must have the right to cross examine and prevent further evidence in response to the introduction of improper evidence.