By Hon. (Ret.) Ken E. Adair 
We Have a Presumption of Innocence
Video Transcribed: What does it mean to have a level playing field in a criminal prosecution? You’re the criminal defense lawyer and the prosecutor gets up in and starts asking questions. And at some point looks at the jury and says, “All we want is a level playing field folks. That’s all we want. We’re entitled to a level playing field.” And you’ve all heard it.
And sometimes you’ve got up and said, maybe that you want a level playing field for your client because you assume that every thing’s leveraged against you, the limitless resources of the state, the fact that these police officers get to come up wearing a badge, which used to be called a shield. The stand between criminals and law-abiding citizens. It used to be a shield. Now it’s a badge and they wear your American flag on their sleeve and they get up there.
And you’re, you’re worried that they’re going to get too much credit based on being the law enforcement. And the prosecutor uses the word or the phrase, level playing field. What do you do? Me? I object. It’s not a level playing field. It’s not supposed to be a level playing field. The playing field is supposed to be slanted in the defendant’s favor, which is why the state has the burden of proof and why the standard of proof is so high. Let me explain.
If the burden is on them and the burden is not on them because we coddle criminal defendants. Anybody who thinks we coddle criminal defendants, think again. And don’t let anybody ever say when you’re at the dinner table and somebody talks about coddling defendants, you say, “No, you can’t prove that you didn’t do something. They have to prove that you did.”
And we have a presumption of innocence. I’ll do another video on that. You’re innocent unless proven guilty beyond a reasonable doubt each and every element of the crime. That presumption of innocence is based on a rule of logic. It’s not an absolute rule of logic, but it’s a pretty solid rule of logic. I cannot prove that I had anything to do with the Murrah building bombing. I’m from Oklahoma City.
I was inducted into the Navy in that building. I didn’t live that far away from the building. I’d been out the night before talking to a paramedic friend of mine who was having some difficulty until 1:30 in the morning, not just a couple of miles away. I was playing golf in Norman supposedly. I don’t know that I could prove I was playing golf at Norman that morning, but I can prove that I didn’t blow up the Murrah building bombing.
You know, if all they had to do was to hurl the allegation at me, all I can do is get on the witness stand and say, I didn’t do it. But the law does that for me anyway, the law says he’s innocent. He didn’t do it. The state’s got to prove that he did it because as a general rule, you cannot prove the negative. That’s a rule of logic, that is not coddling criminal defendants. And the standard of proof is high because we can’t just take people’s liberty away based on rumors and innuendo.
There has to be evidence, competent, credible, believable evidence that proves beyond a reasonable doubt each and every element of the crime, not collectively, individually, each element of the crime beyond a reasonable doubt.
So this fiction of a level playing field, and you’re fighting to get the level playing field. And you’re entitled to an uneven playing field that slants in your favor as a criminal defense lawyer for your client. Not because we coddle criminal defendants, but because of the presumption of innocence, the rule of logic is an absolute must. Otherwise, we have a foolish criminal justice system that requires defendants to prove their innocence.
Don’t allow the burden-shifting of arguing a level playing field for the prosecution. And don’t you dare lean into that punch and ask for a level playing field. The jury needs to understand, at least in principle that the playing field is not level and it’s not level for a good reason.
Imagine if they were to be accused of something they didn’t do, they wouldn’t want a level playing field. They would want the state to have to prove that they did it, whether they put on any evidence or not. And that’s the law.
I hope this video has been a little bit helpful for you. And I look forward to talking to you some more. This has been Oklahoma trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.
