"Innocent Until Proven Guilty" or... Is there an exception?

The Universal Declaration of Human Rights

Article 11 of the document says:

"Everyone charged with a penal offense has the right to be presumed innocent until proven guilty."

It wasn't until March 4, 1895, that presumed innocence over presumed guilt was cited as the starting point in the Coffin et al. v United States case. This case established the presumption of innocence for our courts from that case forward to this day. We are used to the concept of presumed innocence in our modern-day courts, where the prosecution must work to prove a person's guilt. This range of legal clauses, otherwise known as "Due Process," is designed to protect us if we are falsely accused of a criminal act.

As a Licensed Private Investigator in Fort Worth, I primarily work in the Criminal Defense arena. As a Criminal Defense Investigator, my job is not to "make a guilty man innocent or an innocent man guilty," but to gather facts and provide all the information the defense attorney needs to best represent his client and advise his client of the options that face them. As the defense investigator, it is my job to turn every stone that can possibly be turned. If I do my job correctly and thoroughly, and the accused is found guilty by trial, they will preserve their right for an appeal, but the likelihood of retrying the case will be slim. If the accused is truly innocent, I pray that no innocent man spends one day in prison, and my investigation will help their attorney prove that.

As a former law enforcement officer, it was much easier to get people to talk to me or, at least, to gain traction in my investigations with witnesses, suspects, and victims. Then, I had the law on my side as I had the powers of arrest and subpoena. Now, as a private investigator, I don't enjoy those powers. I must use the power of my charming personality, quick thinking, and persuasive argument to gain those audiences. Often, it is tough to get a witness to care enough to speak up. I tell them, "Think about the situation if you were in the other person's shoes and there is only one witness who knows the truth to keep you from going to jail. You would want that person to speak up, right?" Sometimes that works, but many people say, "Ya, but I have a job and can't take time off," or another lame excuse. Can you imagine, when the case is a "Crimes Against Children" case, that this is the response I get? As soon as a potential witness realizes the charge, they immediately throw up a wall. You can read the judgmental attitude as they think, "If they are really innocent, no one will accuse them of something like that." The investigator must be highly skilled in the art of communication to get those witnesses to talk. Sometimes, I can help them understand that I am not there to manipulate anyone to say something they don't want to say or twist their words and meanings. Other times, I get the door slammed in my face.

That is only ONE of the many issues with these cases that inhibit the ability of a defendant to obtain a fair trial. Gathering witness statements and willing witnesses to speak at a trial is critical. The next hurdle is approaching and talking to the "complainant." Some people automatically call the complainant the victim. I started doing this until I could get my thinking straight to remember that not all complainants are indeed victims. Some are mere accusers. In Crimes Against Children cases, the complainant or victim is a child, or at least was a child at the time they said a crime occurred. If the complainant is a child, it is appropriate to first go to the parents to obtain their consent to interview the child. Most parents immediately try to shield their child from speaking to anyone from the defense side because they want the accused perpetrator to fry! The prosecutor tells many parents that they should not talk to anyone other than those from the prosecutor's office. The prosecutor cannot tell them they cannot speak to anyone else, but their warning insinuates that. The defense investigator should absolutely say to the parent who they are and why they want to talk to the child in the case and also interview the parents or any other family members who may be witnesses. If they don't inform them of their true purpose, the person could unsafely assume that the investigator is part of the prosecution team. They will scream to the judge that the investigator misrepresented themselves when they learn otherwise. This could be disastrous for the defendant! So, the "gift of gab" and the art of persuasion, which doesn't cross the line into coercion, is a must-have tool or talent for private investigators who conduct these types of interviews.

Another hurdle is Law Enforcement. I have been a police officer for over 20 years and have worked on these cases. I learned that most officers assume that a "child" would never lie about being sexually assaulted unless it was true. It is difficult to discern the truth from a false accusation at first and sometimes through the investigation. Some people, even kids, have the manipulative ability to convince everyone of a totally made-up story. They can tap into one's emotions and bring enough truth or facts to form a compelling story. Law Enforcement officers are trained to look at the various aspects of facts in cases. Still, sometimes, officers' emotions get wrapped up in the cases, and this can cause the officer to lose objectivity. The officer will then go off chasing the rabbit down the trail to prove the suspect's guilt rather than chase the leads that could prove their innocence. If the police investigator tries to turn every stone to prove their innocence, and they cannot, then they have just sealed their case where no one defense could overturn the charge. When an officer or investigator is not objective and only tries to prove guilt, they have created an injustice! Officers don't mean to be a part of injustice, but losing objectivity leads to it.

Yet another hurdle is the prosecutor's office. I have walked in to see signs stating this: "In the Criminal Division, our prosecutors will ensure fair, impartial, and equal administration of justice, advocating for severe punishment of dangerous and violent offenders while preserving the rights and dignity of crime victims and their families." This is the Clermont County, Ohio, Prosecutor's Mission statement. You notice that they state that they are impartial. However, we often find that Prosecutors / District Attorneys seem to be in a numbers game to show they are "tough on Crime" and can tout an 85% conviction rate to win the election of their next race. After leaving law enforcement as my full-time career, I have realized that justice doesn't always seem to be the goal of the District Attorney's office. As a police officer, I always believed that the "Justice System will sort it out" line that I heard from other officers was true. I believed that there were further investigations by the DA's office to help prove or disprove a case. Still, I personally overheard a prosecutor screaming in anger that my client better take the deal, or she would work to bury him. This DA knew that there were four different stories about how the allegation occurred, but that didn't matter to them. They wanted a deal for a conviction. They wanted the conviction so badly, knowing their case was very bad, that they offered the defendant, charged with Aggravated Sexual Assault of a Child, a Class A Assault charge, non-sexual, time served. The defendant was so terrified that he "might" be found guilty that he accepted the plea.

I was the investigator who found the many witnesses who told the other versions of the teen complainant's story, and all the close-friend witnesses were sure that she made up the story. The defendant was young but not ignorant. He realized jurors were likelier to believe the "child" on the stand rather than him. The child was a fourteen-year-old Black female, and the defendant was, by the time the case went to trial, a 19-year-old Black male. He was accused of raping this then-12-year-old girl in the back seat of his car. The truth was he met the girl in the Walmart parking lot, and she asked him for his number because she could not give him her number. She began calling him, and after lots of "phone tag," they spoke 2 or 3 times over the phone. He wondered why she was never able to meet him at the movie theater until he learned she lied to him about her age. She told him she was 15 years old. He was only 17 years old. He was shocked! He didn't own a car, nor even have a driver's license or access to borrow a car. He was working to buy a car eventually. He walked to work and walked to the college class that he was taking. He never met her after giving her his phone number! The defendant felt that the jury would see this cute young girl and automatically believe her because no one lies about these cases, BUT THEY DO! Not often, but occasionally people have ill motives. In this case, the girl lacks family attention. She said as much to her close friends.

The bottom line is this. In criminal cases, a person is presumed innocent until proven guilty unless it is a "he said-she said" case. The woman or child is most likely to be believed. In Crimes Against Children cases, you must prove the defendant's innocence, or they are going to prison. It was somewhat shocking when I learned that there are innocent people in prison and that there are injustices in our Justice System. As a Law Enforcement officer, I thought most all police officers were impartial like I was and worked hard to find the truth, but I had to face the fact that many officers and attorneys are lazy or allow their emotions to get in the way of justice. I used to be embarrassed to tell anyone that I worked as a Defense Investigator until I learned that if I do my job right, then justice is more likely to be served!

About the Author: Catherine Smit-Torrez has over 20 years of law enforcement experience. During her tenure in law enforcement, Catherine served as Chief of Police for the Cockrell Hill Police Department. Catherine has also served as a Private Investigator since 2008 and owns Stiletto Spy & Company Investigations, LLC since 2010. She served as the President of the Texas Association of Licensed Investigators 2020-2022 and is a Texas Board Certified Investigator.