Metropolitan News-Enterprise


Tuesday, May 24, 2016


Page 1


Court of Appeal Holds

Prosecutor’s Insistence That Presumption of Innocence Vanished Was ‘Harmless’


By a MetNews Staff Writer


The conviction of a man on five felony counts of child molestation were affirmed yesterday, notwithstanding misconduct of the prosecutor who, during closing argument, told jurors that the presumption of innocence no longer applied.

The prosecutor asserted:

“Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read.  But you have now heard all the evidence. That presumption is gone.”

Writing for Div. Six of this district’s Court of Appeal, Presiding Justice Arthur Gilbert said, in a published portion:

“When a prosecutor argues to a jury the presumption of innocence and the burden of proof beyond a reasonable doubt, she or he may not mislead jurors with an incorrect explanation that lightens the prosecution’s burden. Here the prosecutor told the jury that the presumption of innocence is in place only when the charges are read.  Such a grossly deceptive definition could have resulted in a reversal. The overwhelming evidence against the defendant and the trial judge’s instructions rendered the misconduct harmless.  A conviction should not rest on fortuities.”

Gilbert went on to say:

“The presumption of innocence is a fundamental component of a fair trial under our system of criminal justice….The presumption of innocence continues not only during the taking of testimony, but during the deliberations of the jury until they reach a verdict….

“To tell the jury that the presumption of innocence is gone prior to the jury’s deliberations is egregious misconduct.  It strikes at the very heart of our system of criminal justice. Even the most unseasoned prosecutor should know better than to make such an argument to the jury.”

The case is People v. Cowan, B258587.


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