In the wake of recent stories in the Washington Post where women have accused Republican Senate candidate Roy Moore of inappropriate sexual contact with them when they were teens and when Mr. Moore was in his 30s, there has been much discussion of the legal concepts of “innocent until proven guilty” and “proof beyond a reaonsable doubt.” A popular refrain from the right is that it is unfair for Mr. Moore to be evaluated as an unfit candidate for Senate when he has not been confronted by his accusers in court and where a jury has not weighed in on guilt beyond a reasonable doubt. This is not a policital post. If it were, I would discuss how odd it is to hear folks with certain political and religious leanings suddenly embracing core civil liberties concepts. And I would express my hope that their sudden interest in these concepts will remain with them when the accused is not a Republican candidate for the United States Senate.

What I would like to do, instead, is talk a bit more about where proof beyond a reasonable doubt and the presumption of innocence matter and where they don’t. I offer this perspective from having represented folks for years who are accused and who have been convicted crimes.

Proof beyond a reasonable doubt is necessary to overcome a legal presumption of innocence where a person has been formally accused of a crime and is facing trial for that crime in court. And, beyond that limited space, those concepts mean very little.

The overwhelming number of people accused of crimes do not wish for the opportunity to make a prosecutor prove their guilt beyond reasonable doubt. They would rather forego that opportunity in favor of a dismissal of charges, a plea to a lesser offense, a deal that results in no record of a conviction, or even an admission of guilt in exchange for probation. But the arena of proof beyond a reasonable doubt is a terrifying one. I suspect that the candidate, himself, and his followers would wish to forego the opportunity. That whole system, by the way, comes with some major flaws and a whole bunch of risk. We lawyers go to classes and read books to help us use marketing principles to influence juror behavior — both sides do it. Proof beyond a reasonable doubt and presumption of innocence are patriotic concepts that we run to when we feel an affinity for the accused. But the reality of all that is very messy.

Where else does the presumption of innocence and proof beyond a reasonable doubt matter beyond a criminal court? I am straining to think of a place outside of court where it actually matters. Consider the collateral consequence of being merely accused of a crime or of working out a case short of a pronouncement of guilt.

• For employment purposes, a mere arrest may be sufficient for termination. This is particularly the case in employment at will states. I’ve had this discussion with many folks accused of crimes. And vast numbers of employers do not apply anything close to a beyond a reasonable doubt standard.
• Licensing and Immigration. Many States offer deferred adjudication and dismissal opportunities such as Georgia’s First Offender Program. In the eyes of the criminal justice system, there is no conviction beyond a reasonable doubt. Indeed, the accused stands legally acquitted. Immigration will view the disposition as a conviction as will many licensing agencies for such things as real estate, insurance, law, and teaching.
• Newspaper Articles and Candidate Evaluation. If proof beyond a reasonable doubt were the standard to run a news article, then there would not be much news being produced. Different papers have different standards for what it takes to substantiate a claim. Check out All the President’s Men to get a sense for what it takes (or once took) to run an expose in the Washington Post. Alas, voters are left to vet candidates for political office without the benefit of a criminal jury deciding whether something actually happened. And we can do that short of a jury trial on matters of character.

We make choices every day based upon truths derived other than by a criminal jury under a proof beyond a reasonable doubt standard. And many peoples lives turn upon an accusation of committing an act that would be a crime but where the claim is not tested by a jury. I’m not sure that we should give candidates a pass just because a claim hasn’t been tested by a jury. If that was the requirement, I’m not sure that we would have a way to choose. Or, in the alternative, many candidates would be getting charged with crimes for political purposes.

Do I wish the world worked differently? When I put on my criminal defense hat, the answer is yes. I have had many tearful meetings in my office with people whose lives are turned upside down by a criminal accusation who find that, after we win the court case, it is still very much upside down. That is how things work. It has been that way for a long time. Alas, there is not a Republican candidate for Senate loophole for any of it.