By Eduardo Asunsolo
A curious aspect of the changing common law is occurring in America.
In the past, accusers and the accused were known to the public based on the old concept of the presumption of innocence.
Scrutiny of the accusers and their claims were as important as scrutiny of the accused, and judges were not carried off by tears of the accusers, the demand of the media, chivalrous notions, or the embarrassment that might come if the name of the accuser is identified with being victims of the crimes they allege.
After all, it was reasoned that a defendant’s liberty is at stake and, in the balance of justice, freedom from prison is weightier than embarrassment caused by public disclosure.
This was based on the dedication to the old ideal of the presumption of innocence. This identification of the accuser publicly permitted the defendant the right to complete and transparent confrontation. Accusers were robustly tested in court.
Presumption of innocence means that every person accused of a crime is considered innocent until proven guilty. The prosecution must prove that the accused is guilty beyond a reasonable doubt, or the accused must be acquitted. The opposite is a presumption of guilt. Sure, it has been argued that the defendants will know the full names of their accusers, but the presumption of innocence is eroded nonetheless for four reasons. Perhaps the first three are of lesser importance than the fourth.
The first, and perhaps the least important, is that the public may scrutinize accusers by the complete identification of accusers. Through this, facts may emerge about the truth of the allegations. It is possible that the accusers, subject to the same scrutiny as the accused and not hidden from the public oversight, might adjust the narrative of their accusations, for there are those who may know it not to be accurate or provide evidence that the accuser’s claims should be vetted by the prosecution or the defense as in the example of one with a history of falsely accusing.
The second reason is that anonymity may encourage false accusations. It is easier to accuse when hiding behind the cloak of reduced scrutiny that anonymity affords.
The third reason is based on common fairness. Most alleged crimes where accusers seek anonymity and are routinely granted it by courts are given for the same reason that they should not be granted. The moment these crimes, mainly of the sex crimes variety, is charged, the accused’s reputation is destroyed, whether factually innocent or not.
If one is to be destroyed by the allegation alone, this should not be done with ease and by freedom from scrutiny of the accuser in one’s community.
For instance, if a person is accused of rape, that person becomes a pariah, an outcast. They may lose their employment, business, or spouse; friends will cease to call, and their children will be humiliated based on the accusation alone.
The public rarely evokes the presumption of innocence, and the present state of the media encourages this, to be sure.
Yet, if all citizens are to be considered equal, and if we wish to encourage a brave and truthful society, the accused is as vital as the accuser. If the accused’s reputation is to be shattered, let the accuser be bold.
With the protection of just governance, the alleged victim and the alleged criminal stand equal under the law until the jury’s verdict is rendered.
If the fully transparent disclosure of the accusers were to result in even one in 10 false accusations being made, it would comport with the historic ideal that ten guilty ones should go free rather than one innocent convicted.
But one may argue that these three reasons are irrelevant because many victims, cowed by the horror of the crime committed against them, would not have the courage to come forth and make the complaint if they had to undergo the additional shame of public disclosure.
And this is no doubt true at present. Some victims would not accuse to avoid humiliation. But by permitting this, society reinforces stereotypes that have no place in a fully empowered society of equality for all.
Suppose one can humiliate or ruin the accused’s reputation forever. In that case, the accuser should withstand the simple common fairness of being known as the one who makes the accusation.
As it may discourage some actual victims from coming forward, it may also prevent false accusers from coming forward.
The argument that the latter is far rarer than the former is irrelevant even if there were any proper way to prove it. There is not, for the metrics used to judge false accusers are not based on logic, are variable, and sometimes as frivolous as whether the defendant was convicted or not, factoring zero percentage for the conviction of innocents.
But assuming that one could determine that there would be more truthful accusers that would not come forward than false accusers if the accusers’ identities were to be named equally with the accused, there would still be those who would come forward. These would be the encouragement of others, and soon it would not be considered shameful to make a true accusation for the brave preceded. It is always preferable to encourage the brave and transparency than promote secrecy and shame.
But these too may be of far lesser importance than the one reason that all by itself requires all accusers – or at least all accusers who have reached the age of 18 – should be publicly identified.
The culture of the new order, one driven in part by the media, is one where, in general, all accusers are given the assumption of veracity because if they suffered, they deserve our sympathy.
This is a natural fact of humanity even without the media and is one of the principal reasons for the presumption of innocence so that the accused might get a fair trial and not be tried in the media first and then inevitably – as if in cowering to the voice of the people – the judge must capitulate and leave his role of impartiality and lead the jury to its verdict lest he is blamed for a verdict the public would condemn.
This judicial leading of the jury is occurring more and more in our courtrooms. It is an abdication of the separation of the judge, the neutral referee – and the jury, the finder of fact and the law and the representatives of the people, whose role it is to convict those who breach the standards of society and to keep the government in check by the historical principle that the government may imprison no one without the consent of the jury.
The jury is a sacred institution to our freedom and woe to the country that eliminates it or weakens its force. Without it, that country will drift toward tyranny and corruption, for the independent jury is the palladium of liberty. It has been so since the jury was first invoked to limit the power of kings.
When the court rules that accusers deserve the protection of anonymity, they undercut the historical and priceless defense of tyranny, the presumption of innocence in the courtroom where it matters, and tilts it firmly toward the idea of guilt.
Even if it is subconscious, the shielding of the names of the accusers from the public sends a solid message to the jury, for what is the jury to think other than that the court has deemed the accusers in need of protection from the world, because the judge, their referee, has determined that the accused has undergone foul and humiliating harm, perforce by the accused.
The very naming of accusers by first names only, or by Jane of John Doe, brings instant and irrevocable prejudice to the defendant.
Even in ordinary cases, it is impossible to overcome. The judge may tell the jury that they are not to presume guilt because the first names only are being used, but this will not offset it; a few words spoken over them at the beginning or end of a trial will not overcome the impression that the alleged victim is an actual victim since the judge knows they must be protected from what the accused has done.
However subtle, it resides there in the jury and cannot be easily overcome. It can be compared to the judge who says to the jury, “you must decide who is innocent or guilty, but I have already decided that the accused is guilty – but pay no attention to that.”
It entered a new form in the criminal trial of Keith Raniere, which is now being used as a kind of precedent in other criminal cases.
In the Raniere trial, the judge went to the extraordinary step of categorizing a large group of individuals who did not appear at trial and those who did, who should be named by their full names and who by their first names only.
It reached such absurd proportions that they needed a scorecard of whose last names could be told and who by the first name only, with no discernible reason for the distinction. Indeed, some of those whose names were revealed underwent the same set of circumstances as those with first names only. The resulting mishmash and hodgepodge of naming boiled down to, in effect, those who were against the accused had their names shielded, and those who supported him or had yet to denounce him were to be named fully even if they did not appear at the trial.
In one instance, the last name of a person – a well-known public figure – was ordered not to be used – while the person she allegedly brought into the alleged racketeering enterprise – was to be named fully – though if the allegations of racketeering and the resultant allegations of coercion and coercive control were true, then the person whose name was shielded was more guilty than the one she recruited.
The only difference was that the one whose name was shielded had denounced the defendant while the one fully named had not.
Of course, the Raniere case is extreme in its full flower of judicial misconduct; it represents the new judicial era of rejecting the idea of the presumption of innocence and where the judge usurps the jury’s role and leads them to conviction.