WE Are UNLESS

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Saturday, June 11th, 2016
WE Are UNLESS

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

—Tex. Pen. Code 2.01

The presumption of innocence is commonly understood to be a legal term of art. If that be the case, then, the question becomes whether art really does imitate life in this business.

In theory, the presumption of innocence is indeed a term of art in the sense that it has a specific meaning within the legal field and amongst its practitioners. The presumption is more than just a phrase connoting a specified meaning, though. It is the foundation upon which our niche in this profession has been built. It is the keystone principle that maintains the integrity of our system of justice. It is the fiber in the connective tissue that binds us all to whatever construct we perceive of as our social contract.

In reality, the presumption of innocence is the Alpha and the Omega. Without it there is no justice. Without it, no trust. Without it there is no reason to honor the terms of any social contract, real or imagined.

But the juxtaposition of the presumption of innocence with other legal terms of art brings a sad reality into focus. The “State” is a good and telling example. The truth is there is no “State.” It has no address. No postal zip code. There are no pearly gates that separate the “State’s” lushly manicured grounds and towering white spires from the citizen and his shanty town. There is no lone figurehead reminiscent of Reagan or Stalin or Margaret Thatcher or Thor. It only exists insofar as society allows it to exist. The “State” is a legal term of art, just like the presumption of innocence.

Except, it is nothing like the presumption of innocence. The State is an illusory fable penned by our Founding Fathers and passed from one generation of white-hatted do-gooders to the next. It is drafter and signatory to the social contract to which each of us is bound. It is the aggrieved party and the enforcer whose job it is to redress perceived contractual transgressions. The “State” implies more than it says. The State has a long and ranging arm. The State wields a big and often wretched stick. The State, by and through its agents, has within it the power to chuckle at Oppenheimer’s quip: “Now I am become Death, the Destroyer of Worlds.” In short, the State has within its dominion the propensity for a self-righteous and trembling gravitas.

By way of contrast, there is the presumption of innocence. There can be little doubt the presumption of innocence has been turned on its head. It has been eulogized as a dead letter, its demise feted in the halls of the State. It has been heckled and jeered and burned in effigy. In truth, the presumption of innocence is at odds with its maker and, because of that, no longer exists.

Our citizens accused are more likely to enjoy unicorns and leprechauns and purple rhinos than they are the presumption of innocence. It has been reduced to a sad and consensual hallucination, the artifice of sophistries. But what is profoundly more disheartening than its demise is the reality that we—the defense bar—have helped to kill it.

Not affirmatively, of course. We haven’t exercised the audacity the State so often has when it, for example, hides exculpatory evidence. We haven’t plotted—with maniacal attention to detail—the murder of the presumption of innocence, intentionally or knowingly, or with malice aforethought. Not even death by a thousand pricks is to blame for its demise, at least insofar as those pricks are we.

Instead, we have sharpened the guillotine of the State with our neglect. Ironically, all we have neglected is but a single word. But, as Mark Twain once remarked, “The difference between a word and the right word is like the difference between lightning and a lightning bug.”

As codified, the presumption of innocence, that useless ramble, suggests: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”1

Close your eyes and say it aloud. Now, imagine yourself standing tall before the venire, sweating and preaching and rambling for the 15 minutes the court has conferred upon you like a soiled gift. Look down at your imaginary outline to where the presumption of innocence necessarily precedes the burden of proof. Ask a pretend person to re-state the presumption of innocence in the shorthand we all so often hear.

“Innocent [fill in the blank] proven guilty.”

If your febrile imagination inserted the word until between the brackets, then you, like so many of us, have the blood of the presumption of innocence on your hands, too.

Resist the temptation to roll your eyes and consider the following: The word until is a conjunction that is used to refer to the time that took place or passed before an event or incident. It means “up to the time” or “till the time.” It is also used to show one’s aim of finishing a job or task even if there are things that make accomplishing it difficult.

The word unless, on the other hand, is a conjunction that is used to refer to a condition which makes the event or incident that precedes it impossible. It has the same connotation as the words if and except.2

The words unless and until are not tautological. They do not mean the same thing. They should only be used together when the situation calls for both a context of time and a precondition.3 Using the word until suggests the result is an eventuality. Using the word unless suggests there is some condition precedent that must be satisfied before that result may occur.

Imagine you’re watching an old black-and-white docu­series memorializing the great Clarence Darrow and one of his magnificent rites of defense. Imagine further he is engaged in a heated exchange with a corrupt prosecutor regarding the rights of the accused. Imagine Darrow’s impassioned plea in support of a vigorous and competent defense:

“He is presumed to be innocent UNLESS proven guilty,” Darrow might shout.

Until, Mr. Darrow. Until he’s proven guilty.”

Now tell me you don’t feel the difference. In the example, the prosecutor says a lot without saying much. An economy of words does not necessarily imply an economy of meaning. And, it should not be difficult to divine which of these incarnations ought to be championed by those whose job it is to ensure that justice is done according to the law of the land, as it is written, and as it was intended.

It is also important to highlight the obvious. This business we have chosen is an adversarial one. We are competitors, in fact and in theory. We work with the same facts in an attempt to deliver different products. Woe befall the lawyer who fails to appreciate the reality that an aspect of what we do includes the idea of a sales pitch. Even worse is the thought that some lawyer mistakenly assume his or her pitch is limited by what they believe the facts have or have not proven. We incorporate the pitch in the way we dress and the way we dress our clients. We incorporate the pitch in the way we address the courts and the way we address its juries. We organize and pander to the right­ful pageantry of the presumption of innocence, forgetting somehow that the devil is almost always in the details. The end result is that we are allowing the “State” to capitalize on our neglect. We are conceding the sale before either side utters so much as a single word.

WE are UNLESS and THEY are UNTIL.

The challenge of the defense is to convince the venire that the determination of guilt has yet to be made. In other words, we want them to understand and believe that the accused is presumed to be innocent unless the facts prove otherwise. The challenge of the State is to convince those same people that they wouldn’t be wasting their time if the guilt of the accused were not already assured. In other words, they want them to believe that all that is required of them is that they wait until the end of the State’s presentation before properly returning a verdict of guilt.

Our challenge is consonant with the spirit of the law. Theirs reflects the aim of those engaged in adversarial competition where the results are almost always zero sum. Whether the conflation is the result of intentional complicity or mutual negligence is irrelevant. The point is it is happening. It is diminishing the State’s burden of proof (another term of art). It is poisoning our juries. It is dooming the prospects of our citizens accused. Make no mistake, with a single word we have allowed the “State” to stack the deck against us.

In marketing circles, the term is referred to as “presupposition.” Presupposition is often utilized by using words and language that indicate your assumption that your offer has already been accepted. It is a technique that is used both consciously and subconsciously.4 In the context of the legal field, it is, quite simply, tradecraft. And, what is truly disturbing is that we’re not just allowing this to happen. We are perpetuating its dissemination and widespread acceptance. We act like it’s no big deal.

The impact of word choice is not limited by the ability of the audience to consciously discern subtle differences, either. Re­searchers have long known that expectations influence cognitions and behaviors.5 When we expect a particular outcome, we automatically set in motion a chain of cognitions and behaviors to produce that outcome—and misattribute its cause.6 Although expectancies can develop in many ways, they are often the product of suggestion. Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate.7 Suggestion can influence implicit learning and lead to the enhancement or impairment of memory.8 Further, suggestion can also influence evaluations of a product above and beyond its intrinsic features.9 Suggestions, particularly those that people do not realize they are communicating, can transmit expectations to others and thereby influence their thoughts and behaviors.10

Clearly, the “State” has not taken a chainsaw to our beloved presumption of innocence. Rather, it appears the instrument used was more likely a scalpel. Its aim was specific and its incision precise. The product is a facelift that has altered the fundamental character of the presumption of innocence. A single word has undermined its promise. Now, there is a presumption of guilt, and that presumption is a self-fulfilling prophecy.

What the literature suggests is that when the inaccurate beliefs of different perceivers about a given idea are similar, their individual self-fulfilling effects can accumulate such that their combined self-fulfilling influences may be more powerful than any of their individual self-fulfilling influences. That is, the similar and inaccurate beliefs held by multiple perceivers may potentiate one another’s self-fulfilling effects, a process referred to as synergistic accumulation.11 So, if even one of your potential jurors internalizes the conflation to encourage a presumption of guilt, the die may have already been cast.

Fortunately, the literature also suggests that members of stereotyped groups may be shielded from confirming negative stereotypes if they are also exposed to positive beliefs. In this example, the “stereotyped group” is the citizen accused. The negative stereotype is that a citizen wouldn’t be accused unless he was guilty. The positive belief is the assertion that there is a more redeeming and legally correct definition of the presumption of innocence. To paraphrase Miracle Max, what this ultimately means is that the presumption of innocence is only mostly dead. There’s a difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead . . . well, with all dead, there’s usually only one thing you can do.12

What we can do—what we must do—is right the ship. The presumption of innocence is the ballast that brings balance to the system. For some time now, the ship has been taking on water. As its designated stewards, we must all start bailing that water.

The remedy is simple: object. Object on the basis that the conflation of unless with until with respect to the presumption of innocence is a misstatement of the law. It is. Object on the basis that use of the word until is a comment on the weight of the evidence. It is. Object on the basis that use of the word until effectively reduces (if not eliminates) the “State’s” burden of proof. It does.

Currently, it appears we are unwittingly content to go down with the ship. A simple natural language search for the phrase “innocent until proven guilty” returned only 99 Texas cases. A non-exhaustive review of those cases revealed almost nothing directly on-point. One of them was, and its analysis was telling. In Randolph v. State, the appellant complained that the trial judge violated his due process rights when it suggested to the venire that he was “innocent until proven guilty.”13 The COA noted that “[t]he Texas Court of Criminal Appeals . . . has not drawn a distinction” between unless and until when those terms are used in connection with the presumption of in­no­cence.14 Then, the COA basically shrugged its collective shoulders and, in effect, said, “Look, we all do it all the time; what’s the big deal!?”15 After all, trial counsel did not object to it when he had the chance.16 And the COA observed that “nothing in the record indicates that the venire meaningfully distinguished ‘unless’ from ‘until’ in the context in which the trial court used it during voir dire such that the use of ‘until’ negatively affected [appellant’s] presumption of innocence.”17 Nothing in the record, huh? No kidding.

The issue is not what is being put on the record while the venire is attentively seated. The issue is what the venire is bringing with them—subconsciously or otherwise—as they file in to the room. When we allow the law to be misquoted in the manner it currently is, we effectively endorse a subliminal message that is broadcast to the entire world. The message we send is that trials are but a mere formality. The message we send is that trials are not a search for the truth. The message we send is that trial is simply the final wait to be endured before the accused can be rent asunder. The message we send is that convictions are an ultimate imperative. In an adversarial system such as ours, it is hard to fathom how we can expect to prevail over the “State” when we allow them to start the race at the finish line. That is the difference between unless and until.

We are the purveyors of the presumption of innocence. We are its stewards. We have to do better.

We are unless . . . until we’re not.

Notes

1. Tex. Code Crim. Proc. art. 38.03; Tex. Pen. Code § 2.01.

2. M., Emelda (2011). Difference Between Until and Unless. Retrieved from www.differencebetween.net/language/grammar-language/difference-between-u....

3. Unless vs. Until. Retrieved from www.diffen.com/difference/Unless_vs_Until.

4 .The Rule of Expectations—The Impact of Suggestion. Retrieved from http://westsidetoastmasters.com/resources/laws_persuasion/chap10.html.

5. Michael, R. B., Garry, M., Kirsch, I. (2012). Suggestion, Cognition, and Behavior. Current Directions in Psychological Science, 21(3) 151-156.

6. Id. (citing Kirsch, I. (1997)). Response expectancy theory and application: A decennial review. Applied & Preventive Psychology, 6, 69–79. Doi: 10.1016/S0962-1849(05)80012-5; Kirsch, I. (2004). Conditioning, expectancy, and the placebo effect: Comment on Stewart-Williams and Podd (2004). Psychological Bulletin, 130, 341–343. Doi: 10.1037/0033-2909.130.2.341).

7. Id. (citing Stewart-Williams, S., & Podd, J. (2004). The placebo effect: Dissolving the expectancy versus conditioning debate. Psychological Bulletin, 130, 324–340. Doi: 10.1037/0033-2909.130.2.341).

8. Id.

9. Id.

10. Id.

11. Madon, S., Guyll, M., Spoth, R., Willard, J. (2004). Self-Fulfilling Prophecies: the Synergistic Accumulative Effect of Parents’ Beliefs on Children’s Drinking Behavior. Psychological Science, Vol. 15, No. 12, 837–845.

12. “The Princess Bride.” Dir. Rob Reiner. Twentieth Century Fox Film Corporation, et al., 1987. Film.

13. Randolph v. State, 2008 Tex. App. LEXIS 9192, No. 01-08-00266-CR, *1 (Tex. App.—Houston [1st Dist.] 2008, unpub.).

14. Id. at *8.

15. Walters v. State, 247 S.W.3d 204, 210 (Tex.Crim.App. 2007); Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App. 1998); Hill v. State, 955 S.W.2d 96, 100 (Tex.Crim.App. 1997); Mays v. State, 726 S.W.2d 937, 951 (Tex.Crim.App. 1986); Wiseman v. State, 223 S.W.3d 45, 50 (Tex.App.—Houston [1st Dist.] 2006, pet ref’d); Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005); Wynn v. State, 219 S.W.3d 54, 59 (Tex.App.—Houston [1st Dist.] 2006, no pet.).

16. See Randolph, 2008 Tex. App. at *6.

17. Id. at *8.