One-hundred and twenty-eight years after “the Supreme Court of the United States had an opportunity to clear up the confusion and ambiguity that hang[s] over the common talk about the presumption of innocence,”1 the confusion persists. This lingering confusion is at its most stringent in federal bail determinations where, despite legislative intent, precedent, and logic to the contrary, it is invoked to discount the weight of the evidence against the defendant in deciding what conditions will secure presence at trial or safety to the community. Furthermore, the presumption’s path from an instrument of proof to its status as a right is largely taken for granted. A close examination of that history shows such exaltation is not warranted. This Comment aims to provide a roadmap for advocates who wish to challenge the—assumed correct—application of the presumption pre-trial, as this has recently gone uncontested. Such a roadmap is more appropriate than ever as the conversation regarding the presumption and its unquestioned status continues “to encourage that feeble administration of our criminal law which is doing so much in these days to render it ineffectual.”
Davis B. Anderson,
Walking with Shadows and Phantoms: The Presumption of Innocence and Bail Determinations,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol71/iss4/5