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Momma's Always Right column: Innocent until proven guilty

Melissa Petersen, J.D., M.A., is the mother of 10 minor children. She has been a practicing attorney since 2000, and is licensed currently in Wisconsin, Minnesota and Iowa. She resides in rural Pierce County.

In the U.S., a person is considered "innocent until proven guilty," a guarantee to every person under the 14th Amendment. While the circus of Brett Kavanaugh's senate hearings are old news, I can't get over "innocent until proven guilty."

While Kavanagh's hearings were pending, a good friend of mine said: "How can you prove someone's innocent?" I responded saying "That is a good question. Welcome to my world!" I do criminal defense work as a part of my practice (since 2000), so this issue is fundamental.

Imagine a situation I recently found myself in: As a good mom, one Saturday morning I stopped for doughnuts. A man bumped into my van with his vehicle. He was very apologetic to me and told me he'd take care of it. When I finally heard from his insurance, they told me that he told them I hit him with my vehicle. I couldn't believe it! How could I prove my innocence? Why do I have to prove my innocence when it's not even my fault? My situation here is not one of a criminal nature, but it still made me feel helpless because it was my word against his. Praise to God that the insurance company believed me! But what if they didn't? People don't always tell the truth.

The State has the duty to prove a criminal defendant guilty beyond a reasonable doubt. The defendant is presumed "innocent." Our system of justice is better than most, but it's far from perfect. When I have a client who I believe is innocent, I tell them that if they'd like to take their case to trial, they might have 50/50 odds of winning. Not very good especially given the alleged presumption of innocence and burden on the State. Juries are to presume the defendant is innocent, but everyone wants to hear that from the defendant's own mouth—despite the defendant having a right to remain silent that cannot be used against them.

There are reasons not related to a defendant's guilt that attorneys advise them not to testify. For example, your attorney may advise you not to testify because you cannot tell the jury that you have two criminal OWI cases of 0.08, you can only tell them you have two prior criminal cases. You can't clarify that your crimes are not felonies. Another reason might be you are too nervous to speak in public.

If you're relying upon a jury to deliver a result, they'll hear from witnesses (including you) in a question/answer format; witnesses may not testify about things that do not fall within the rules of evidence (so no opinions or character evidence), and you and your witnesses better sound more believable than your accusers (and you better not be nervous when you testify). The jury will likely believe you did something since you were charged. Not an easy feat! Our system creates a winner and a loser. It is NOT a system designed to find the truth.

What would you do if someone accused you of something you didn't do? It is THEIR word against YOUR word. There's no evidence proving they are lying about you. Your only hope of clearing your good name and avoiding imprisonment is to go to a trial where a group of people will decide whether they like your accuser's story or your story better. If you don't testify (your 50/50 odds to win are lower), then they only have your accuser's story. Pray you don't have one criminal offense so that you don't sound worse than your accuser. The jury might just believe them...