Yesterday, U.S. Sen. Mazie Hirono, D-Hawaii made the assertion that Supreme Court nominee Brett Kavanaugh ’87 LAW ’90 does not deserve the presumption of innocence when it comes to the sexual assault allegations leveled against him — because she is NOT in agreement with his judicial philosophy. She appears to be championing the notion that the very principle of “innocent until proven guilty” should not apply in sexual assault cases. The senator apparently does not care about the role of facts in determining guilt or innocence; it is more pertinent to her that he is a conservative jurist and strict constitutionalist.
When interviewer Jake Tapper asked Hirono, “Doesn’t Kavanaugh have the same presumption of innocence as anyone else in America?” She refused to answer “yes,” instead stating, “I put his denial in the context of everything that I know about him in terms of how he approaches his cases.” This implies that, from the Senator’s perspective, the presumption of innocence — a core principle of American law and British Common law, with historical origins in the Justinian Code and Magna Carta — is dependent on an individual’s judicial philosophy.
The Latin maxim “ei incumbit probatio qui dicit, non qui negat” or “the burden of proof is on the one who declares, not on one who denies” has formed the basis for American adjudication in matters of criminal charges since the legal inception of this country.
Thus, the Senator’s comments are truly offensive, dangerous and deserving of uniform condemnation from every US citizen. It is astounding to hear any elected government official speak in such cavalier, politicized terms about whether a U.S. citizen is guilty of a crime, without the due process afforded by the Fifth and 14th Amendments.
Let’s identify this for what it truly is: an attempt to hijack the western notion of what justice is.
A presumption of innocence and the importance of due process, in deciding whether a person is guilty or innocent, is paramount to ensuring freedom in a constitutional republic.
Every American citizen, regardless of political party, should be offended by her comments and recognize them for the threat to the republic they represent.
John Norris Harding III, SOM ’18
Contact John Norris Harding III at norris.harding@yale.edu .