Do you ever wonder why? Just – Why, Huh, Really, Yeah, Unbelievable I’ve been doing that a lot lately. Lately there have been a lot of news reports about the charges being filed against the people who attacked the Capitol. In case you are wondering, yes, I did think about that word choice and that is the one I settled on. All you need to do is look at the tape. And that’s where I’m going.

For years, hundreds of years, we’ve settled on a system of innocent until proven guilty. It’s a good system.  The Presumption of Innocence is so good most people assume it’s a guaranteed right. Actually, it isn’t. Due process is. Due process requires certain procedures are followed before a person can be charged with, tried for, or convicted of any illegal act. The Fifth Amendment of the Constitution demands due process in federal cases and the Fourteenth Amendment extends that protection to those accused in state and local cases. Part of due process at the level of conviction is that the accuser meet a “standard of proof.” That’s where things enter the “Really?” realm for me. Stick with me for another minute please.

Because the accuser has to meet a burden of proof is it assumed the accused is innocent until that proof is met. I prefer to think of it as the accused has not been proven guilty. In fact, if you have served on a jury you might recall before deliberations began the judge instructed you and the other jury members that you were to determine if the accused is guilty or not guilty. Nobody voted for innocent.

Eagle eyed wordsmiths will have noticed in the previous paragraph’s opening sentence I used the word “assume” instead of “presume.” If we have to call the current system something it really should be call an Assumption of Innocence, rather than the Presumption of Innocence.  To “presume” supposes there is some unspecified evidence to reach a conclusion; ‘assume’ takes for granted that whatever is supposed is true. That’s really what we have, we are assuming these people are not guilty. If we were to presume anything it would be the other way around. Why? As another great phrase we’ve all heard goes, let’s go to the tape.*

With cameras so ubiquitous you can certainly presume, darn near assume, that nothing happens without a record of it happening, often by those doing what’s happening, I am utterly amazed at what people say they did not do within days of proudly sharing videos of what they just did. That some rebel can grab a battering ram, slug his and/or her way through a locked door, smash through inner doors, steal items out of offices, take pictures of himself and or herself while battering, slugging, smashing, and stealing, and then plead not guilty of all charges just does not compute. “Yes, I went to Washington but I didn’t go inside.” Let’s go to the tape.

This is all happening at the same time news outlets are publishing security camera video of attacks against Asian Americans including a violent assault of an Asian woman on a street right in front of a police car. Let’s go to the tape.

This all got stirred up in my head over the weekend listening to the reports of the trial of that cop who killed George Floyd. (I don’t want to call it the Floyd trial because he isn’t being tried for anything, and I don’t want to call it that cop’s name trial because I don’t want to give him any extra recognition.) Let’s go to the tape.

With few exceptions all of those so far charged have pled not guilty, certainly that’s their right. They can say whatever they want and the system is built that they don’t have to prove they are not lying when they say it. Let’s go to the tape.

One of the standards of proof is “Clear and Convincing Evidence,” that it is highly probably to suppose what is presented is how the elements of the action had occurred. On the legal ladder of liability this standard lands on the rung below “Beyond a Reasonable Doubt,” that is the elements of the action had occurred as presented (which although is greater than to suppose the elements are present it does not mean “beyond all doubt” or “beyond a shadow of a doubt” or any other such absolute).

Call me an old fuddy duddy but I’m still of the school that if I see something happening with my eyes, I can pretty much suppose that’s how it went down and those actions did occur. Whether it is breaking door the doors to the Capitol, lifting a pack of gum, pushing an elderly Asian woman into a busy street, or kneeling on somebody until their life is snuffed out, I say we change the standard to “Let’s Go To The Tape.” It’s not just for sports anymore.

*The phrase “Let’s go to the video tape,” sometimes “Let’s go to the audio tape” is attributed to sportscaster Warner Wolf. Wolf published his memoir, Let’s Go to the Videotape: All the Plays and Replays from My Life in Sports, (Grand Central Publishing) with Larry Weisman in 2020.