The Presumption of Guilt: Experiences from Milgaard and Other Cases

• Author: Hersh Wolch
• Pages: 43-50

The

Presumption

of

Guilt:

Experiences

from Milgaard

and

Other

Cases

HERSH

WOLCH,

QC

1993

In

late January 1970

a

jury

was

deliberating

on the

fate

of

David Milgaard.

At

that time,

I was a

young Crown attorney beginning

my

career and, like many

Crown attorneys,

I was

self-righteous

and

pompous.

I

don't like those types

of

Crown attorneys very much,

yet I was

definitely

one of

them.

It

was

great being

a

Crown attorney

in

those days

for

several reasons.

I

won

almost

all my

cases.

I had no

Charter

of

Rights

and

Freedoms

to

worry

about.

I had no

pressure groups telling

me to

proceed

in

cases

I did not

believe

in. I had

control over what

I

did.

All I

really

had to do was get

over

the

"presumption

of

innocence"

and

"proof beyond

a

reasonable

doubt"

hurdles,

and

that wasn't

difficult.

In

those days, when

we had a

jury trial

in my

juris-

diction,

the

accused

sat in the

prisoner's

box

with

two

guards standing beside

him. When

the

jury came

in to be

selected,

the

clerk would say, "Prisoner, look

at

the

juror; juror, look

at the

prisoner,"

and

they'd

be

challenged

to

stand

aside.

What

a

start

to the

presumption

of

innocence! Getting beyond

the

rea-

sonable doubt hurdle

was

easy

as

well.

I

would always tell

the

jury

in my

address

that

the

defence

was

going

to

talk about

"beyond

a

reasonable

doubt"

and

explain that

it

doesn't mean "beyond

a

shadow

of a

doubt."

I

also

scrapped

the

word "presumption"

by

saying it's

a

legal kind

of

term,

but we

now

know better.

I

also enjoyed explaining

the

word

"until."

The

legal term

is

not

"unless" you're proven guilty

but

"until" you're proven guilty.

In

other

43