Williams v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I When the judge had given her instructions to the jury at the conclusion of all of the evidence in the first degree murder trial of Willard H. Williams in the Circuit Court for Baltimore City, there was a bench conference marked by the following colloquy between the judge and defense counsel: [DEFENSE COUNSEL]: I have several exceptions, Your Honor. Perhaps I missed it, although I was trying to listen carefully and take down notes. I know that you did give the jury an instruction on the burden of proof and the beyond a reasonable doubt.

I don’t believe the Court ever mentioned the term or explained the presumption of innocence. THE COURT: I never do those terms____ [DEFENSE COUNSEL]: I would ask the Court to do so. The judge responded that she thought that her reasonable doubt instructions, which were the ones she had “used for some years,” were adequate. Defense counsel said, “I would ask the court to explain what the presumption of innocence is ... both by name ... and by substance.” The judge believed that she had done so, although she had not “called it that.” Defense counsel made his disagreement known: I don’t think the court quite covered it and I think it is a subject which needs to be addressed specifically and specifically by name. ³⁸ The judge admitted she had not referred to the presumption of innocence as such and declared “I’m not going to do it now.” Defense counsel tried once more. “Just for the record I would ask for you to do so.” It is clear that defense counsel was persistent in seeking an instruction on the presumption of innocence, and that the judge was adamant in her refusal to give that instruction.

The judge prevailed, confident in the adequacy of the instructions that she gave on burden of proof and reasonable doubt. 1 The jury convicted Williams of manslaughter. He appealed from the judgment entered on the conviction and the Court of Special Appeals affirmed in an unreported opinion. We granted Williams’ petition for the issuance of a writ of certiorari. The case was briefed and argued, but before decision it was reargued on our order.

The sole question for our review is the propriety of the holding of the intermediate appellate court that the trial judge did not err in refusing to give the instruction that Williams requested on “the presumption of innocence.” II A The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432, 453 , 15 S.Ct. 394, 402 , 39 L.Ed. 481 (1895). Coffin’s declaration was quoted with ³⁹ approval in Estelle v. Williams, 425 U.S. 501, 503 , 96 S.Ct. 1691, 1692 , 48 L.Ed.2d 126 (1976). The Court pointed out: The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.

Id. The origin of the principle is indeed of ancient vintage. “The Coffin court traced the venerable history of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States.” Taylor v. Kentucky, 436 U.S. 478, 483 , 98 S.Ct. 1930, 1933 , 56 L.Ed.2d 468 (1978). See Coffin, 156 U.S. at 454-456 , 15 S.Ct. at 403-404 . Coffin observed, at 455, 15 S.Ct. at 403 , “[T]he practice which flowed from [the principle] has existed in the common law from the earliest time.” See Agnew v. United States, 165 U.S. 36, 51-52 , 17 S.Ct. 235, 241-242 , 41 L.Ed. 624 (1897).

The principle remains the law to this day. Taylor, 436 U.S. at 483 , 98 S.Ct. at 1933 . “The presumption of innocence,” 9 Wigmore, Evidence § 2511 at 530 (Chadbourn rev. 1981) declared, “is fixed in our law.” (Emphasis in original, footnote omitted.) The opinions of this Court have consistently espoused the principle: “The law presumes every accused to be inno cent----” — State v. Lassotovitch, 162 Md. 147, 155 , 159 A. 362 (1932); “[t]he trier of facts in a criminal case is enjoined by law to give due force to the presumption of inno cence____” — Berry v. State, 202 Md. 62, 67 , 95 A.2d 319 (1953); “[o]f course, the law presumes every man innocent of crime____” — Thomas v. State, 206 Md. 575, 587 , 112 A.2d 913 (1955); “[e]veryone accused of crime in this State is presumed to be innocent____” — Malcolm v. State, 232 Md. 222, 225 , 192 A.2d 281 (1963). Jordan v. State, 219 Md. 36, 46 , 148 A.2d 292 , cert. denied, 361 U.S. 849 , 80 S.Ct. 105 , 4 L.Ed.2d 87 (1959), states the principle in the words of Berry and cites to Hayette v. State, 199 Md. 140, 144 , 85 A.2d 790 (1952). See Lansdowne v. State, 287 Md. 232, 235 , 412 A.2d 88 (1980).

Without question, the principle is firmly fixed in the common law of Maryland. ⁴⁰ B Although we have adopted the principle of presumption of innocence without reservation, we have never defined it or spelled out precisely its impact on the trial of a criminal cause. We have gone no further than to remark that [t]he trier of facts in a criminal case is enjoined by law to give due force to the presumption of innocence, and then to proceed cautiously in weighing the evidence. Berry, 202 Md. at 67 , 95 A.2d 319 . As is evident, we have accepted the principle as the law of the land as it is commonly phrased and used in reference to the accused in criminal cases — “a presumption” of innocence in favor of the defendant.

That is the phrasing by which the concept is recognized by the average person on the street. In the context of a criminal trial, we are not, and we are satisfied that the average person is not, strictured by the technical definition of the meaning of “presumption.” The key word is “innocence,” not “presumption.” 2 As Taylor put it, the ⁴¹ principle does not operate as a true “presumption,” that is a mandatory inference drawn from a fact in evidence, but rather as an “assumption” that is indulged in the absence of contrary evidence. 436 U.S. at 483 -484 n. 12, 98 S.Ct. at 1934 n. 12. See note 2, supra. Wigmore explained: [T]he “presumption of innocence” is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i.e., the rule that it is for the prosecution to adduce evidence and to produce persuasion beyond a reasonable doubt.

As to this latter part, the measure of persuasion, the “presumption” says nothing. As to the former part, the “presumption” implies what the other rule says, namely, that the accused (like every other person on whom the burden of proof does not lie) may remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i.e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it. Id. at 530 (citations and footnote omitted). Wigmore concluded: “So far then, as the ‘presumption of innocence’ adds anything it is particularly a warning not to treat certain things improperly as evidence.” Id. at 532.

McCormick’s Handbook on the Law of Evidence § 342 at 967 (E.W. Cleary ed. 1984) agreed that the principle is probably better called the “assumption of innocence” in that it describes our assumption that, in the absence of contrary facts, it is to be assumed that any person’s conduct upon a given occasion was lawful. To put it simply, “the presumption of innocence and the prosecution’s burden of proof are logically similar____” Taylor, 436 U.S. at 484 , 98 S.Ct. at 1934 . The opinions of ⁴² this Court have regularly coupled the presumption of innocence principle and the burden of proof beyond a reasonable doubt principle. When we have referred to the presumption of innocence, we have followed with a warning to the effect that “in order to warrant a finding of guilt, it is incumbent upon the State affirmatively to establish the defendant’s guilt beyond a reasonable doubt.” Malcolm, 232 Md. at 225 , 192 A.2d 281 .

See Johnson v. State, 227 Md. 159, 163 , 175 A.2d 580 (1961); Jordan, 219 Md. at 46 , 148 A.2d 292 ; Thomas, 206 Md. at 587 , 112 A.2d 913 ; Berry, 202 Md. at 67 , 95 A.2d 319 . C We discussed the reasonable doubt principle in Lansdowne . We declared, “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure,” 287 Md. at 239 , 412 A.2d 88 . We determined that “[t]he requirement that the prosecution prove guilt beyond a reasonable doubt is constitutionally mandated____” Id.

We pointed out: Because the reasonable doubt standard is an indispensable constitutionally mandated component of every criminal proceeding, a requested instruction explaining its import is applicable within the meaning of Md. Rule 757(b) [Now Rule 4-325, entitled “Instructions to the Jury”]. Id. at 239-240 , 412 A.2d 88 . We have declared: “Proof beyond a reasonable doubt upon the evidence as a whole is the measure [the jury] must require in order to convict____” Berry, 202 Md. at 67 , 95 A.2d 319 . We have warned that “failure to instruct a jury on the necessity of proof of guilt beyond a reasonable doubt can never be harmless error.” Lansdowne, 287 Md. at 239 , 412 A.2d 88 .

Ill Although the scholars, legal literati, and authors of academic literature have deemed the phrase “presumption of innocence” to be “technically inaccurate and perhaps even ⁴³ misleading in the sense that it suggests that there is some inherent probability that the defendant is innocent,” McCormick at 968, nevertheless, they “advise against abandoning the instruction on the presumption of innocence even when a complete explanation of the burden of proof beyond a reasonable doubt is provided,” Taylor, 436 U.S. at 484 , 98 S.Ct. at 1934 . This admonition derives from a perceived salutary effect upon lay jurors. While the legal scholar may understand that the presumption of innocence and the prosecution’s burden of proof are logically similar, the ordinary citizen well may draw significant additional guidance from an instruction on the presumption of innocence. Id.

Taylor described this effect in the words of Wigmore: “[I]n a criminal case the term [presumption of innocence] does convey a special and perhaps useful hint, over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused’s guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases.” Taylor at 484-485 , 98 S.Ct. at 1934 , quoting 9 J. Wigmore, Evidence § 2511 at 407 (3d ed. 1940) (footnote omitted, emphasis in original). McCormick pointed out: In criminal cases, the “presumption of innocence” has been adopted by judges as a convenient introduction to the statement of the burdens upon the prosecution, first of producing evidence of the guilt of the accused and, second, of finally persuading the jury or judge of his guilt ⁴⁴ beyond a reasonable doubt____ Like the requirement of proof beyond a reasonable doubt, it at least indicates to the jury that if a mistake is to be made it should be made in favor of the accused____ Id. at 967-968.

McCormick agreed with Wigmore that the term presumption of innocence “ ‘does convey a special and perhaps useful hint ... in that it cautions the jury ... to reach their conclusion solely from the legal evidence adduced.’ ” McCormick at 968 (footnote omitted). McCormick discovered: Most courts insist on the inclusion of the phrase in the charge to the jury, despite the fact that at that point it consists of