Ei incumbit probation qui dicit, non qui negat. – The burden of proof rests upon the person who affirms, not the one who denies.
Innocent until proven guilty – we all learned it civics class or have seen it on cop and lawyer TV shows, but does it hold true, especially when the worst types of crimes are committed?
In media today, there seems to be an overwhelming tendency to paint criminal defendants as guilty until proven innocent, especially when the alleged crime is particularly heinous.
Take, for example, the movie theater shooting in Aurora, Colorado. James Holmes is charged with 24 counts of murder and 116 counts of attempted murder in connection with that shooting. Although Mr. Holmes will be afforded the same legal safeguards as any other criminal defendant, he will undoubtedly be the subject of extensive media coverage and commentary because of the nature of that crime.
And one particular theme of media coverage is concerning from a criminal defense standpoint: the idea that a defendant who asserts his or her constitutional rights is somehow being uncooperative. The term carries a negative connotation, and is rarely used with other language, indicating that the accused is also asserting a fundamental legal right.
The 5th Amendment to the United States Constitution guarantees that no person “shall be compelled in any case to be a witness against himself.” Additionally, the landmark Supreme Court case Miranda v. Arizona requires police to advise a person under arrest of their constitutional rights if any statements are going to be used as evidence at trial.
The 6th Amendment guarantees that, “in all criminal prosecutions, the accused shall enjoy the right […] to have the assistance of counsel for his defense.”
These bedrock constitutional rights, among others, create the foundation for our innocent until proven guilty doctrine in American criminal law and procedure. Unfortunately, many citizens do not realize the full extent of their rights, or are too afraid to assert them when they come into contact with the police or legal system.
The idea that someone who exercises their constitutional rights when they speak with police (or if they refuse to speak with them) will be branded as “uncooperative” in the news media, or worse, by the police themselves is worrisome.
Police may become frustrated with such individuals, and, therefore, try to make things more difficult for them by using threats or coercive tactics.
The best thing to due when faced with police questioning for any reason is to be polite, but decline to answer any questions. Ask for the opportunity to have a lawyer present: it’s your constitutional right, and exercising it could make a gigantic difference in the outcome of a possible criminal prosecution.
Buffalo, New York
This article is intended for the sole purpose of highlighting the legal rights of any person charged with a crime. It is not a commentary or analysis of the facts, legal issues, or collateral consequences of the shooting tragedy in Aurora, Colorado, nor of any laws of the State of Colorado.
 See, Suspected Aurora, Colo. Shooter James Holmes gets 24 murder charges, The Christian Science Monitor, July 23, 2012 (retrieved on July 31, 2012).
 U.S. Const. amend. V.
 See, Miranda v. Arizona, 384 U.S. 436 (1966).
 U.S. Const. amend. VI.