The presumption of innocence: Material or probatory?

Legal Theory

Volumn 11, Issue 4, 2005, Pages 333-361

  Laudan, Larry ^a  

^a UNIVERSIDAD NACIONAL AUTÓNOMA DE MÉXICO   (Mexico)

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EID: 78650101485     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325205050184     Document Type: Article

References (44)

1. JEREMY BENTHAM, PRINCIPLES OF JUDICIAL PROCEDURE 169 (1829).
2. Flores v. Oklahoma, 1995 OK CR 31 (Okla. Crim. App. 1995).
3. Coffin v. United States, 156 U.S. 432 (U.S. 1895).
4. Kentucky v. Whorton, 441 U.S. 786 at 790 (U.S. 1979).
5. Coffin, 156 U.S. 432 at 453.
6. Estelle v. Williams, 425 U.S. 501 at 503 (U.S. 1976).
7. William Laufer, The Rhetoric of Innocence, 70 WASH. L. REV. 329 (1995), at 333-334: “Evidence of this value, as a reflection of the presumption of innocence, may be seen in the reasonable doubt rule, as well as a series of substantive and procedural safeguards that arguably presuppose legal innocence, e.g., the privilege against self-incrimination and the right to remain silent while in police custody and during trial; the duty of the state to disclose exculpatory evidence; the right to compulsory evidence; the right to confront adverse witnesses; and the right to effective assistance of counsel.”
8. In Lego v. Twomey, the Supreme Court stressed that “a high standard of proof is necessary, we said [in Wingate], to ensure against unjust convictions by giving substance to the presumption of innocence.” 404 U.S. 477 at 486 (U.S. 1972).
9. In 1895, Justice White wrote for a unanimous court: “The fact that the presumption of innocence is recognized as a presumption of law and is characterized by the civilians as a presumptio juris, demonstrates [sic] that it is evidence in favor of the accused. For in all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy…. the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf.” Coffin, 156 U.S. 432 at 460 (emphasis added).
10. STAR-0-3Modern Federal Jury Instructions-Criminal P 3.02. Interestingly, the Supreme Court has seemingly overruled that idea that the PI alone is sufficient to acquit a defendant. See United States v. Ibara-Alcarez, 830 F.2d 968 (9th Cir. 1987).
11. United States v. Fernandez, 496 F.2d 1294 (5th Cir. 1974); and United States v. Dilg, 700 F.2d 620 (11th Cir. 1983).
12. Kentucky, 441 U.S. 786. The Court noted explicitly that “the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution” (id. at 789). Justice White was to put the point even more forcefully a decade later: “A jury instruction on the presumption of innocence is not constitutionally required in every case to satisfy due process, because such an instruction merely offers an additional safeguard beyond that provided by the constitutionally required instruction on reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302, 319 (1991).
13. Here is how Justice Stevens, dissenting, put the point in 1978: “[t]he function of the instruction [on the presumption of innocence] is to make it clear that the burden of persuasion rests entirely on the prosecutor. The same function is performed by the instruction requiring proof beyond a reasonable doubt.” Taylor v. Kentucky, 436 U.S. 478 at 491 (1978).
14. Bell v. Wolfish, 441 U.S. 520 at 533 (U.S. 1979).
15. State v. Green, 275 So. 2d 184, 186 (La. 1973).
16. United States v. Craven, 478 F.2d 1329 at 1339 (6th Cir. 1973).
17. The law in question is 15 U.S.C. § 902(e), which states: “(e) It shall be unlawful for any person who is under indictment or who has been convicted of a crime punishable by imprisonment for a term exceeding one year or who is a fugitive from justice to ship, transport, or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition.”
18. United States v. Thoresen, 428 F.2d 654 at 662 (9th Cir. 1970).
19. See, especially, State v. Konigsberg, 33 NJ 366 at 377 (1960).
20. People v. Tinder, 19 Cal. 539, at 543 (Cal. 1862).
21. A Texas appeals court has argued that “implicit in the probable cause requirement is the presumption of innocence.” Lanes v. State, 767 S.W.2d 789 at 796 (Tex. Crim. App. 1989).
22. Flores, 1995 OK CR 9. For similar sentiments, see State v. Pierce, 260 Kan. 859 (Kan. 1996).
23. Insofar as the courts ever grapple with innocencem, hints of it can be found in habeas corpus review of convictions and in civil and criminal cases alleging false arrest or false prosecution. Still, their relative rarity is powerful testimony to the thesis that the system is largely indifferent to questions about the innocencem of those passing through it.
24. In California, there is a legal category of innocencem. Upon acquittal, any defendant may petition the judge for a ruling of “factual innocence.” The burden then falls on the petitioner to show that “no reasonable cause” exists to believe that she committed the crime of which she has just been acquitted.
25. It is not clear why Massachusetts thinks it necessary that jurors assume the defendant to be “innocent of any crime.” Surely what is germane is that they presume the defendant to be innocent of the crime(s) of which he is charged in the indictment.
26. My italics. Laurence H. Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 VA. L. REV. 371 (1970), at 404. Tribe's analysis of innocence has been endorsed by U.S. district courts (Augustus v. Roemer, 771 F. Supp. 1458 at 1464 (D. La. 1991)), among others. It is hard for me to conceive what Tribe is thinking here. Can he possibly regard detention, arrest, and pretrial incarceration as instances of the sort of “freedom and respect” that we accord to someone genuinely considered “as an innocent member of the community”? Or perhaps he believes that prior to a conviction suspects should never be jailed?
27. See, e.g., Rinat Kitai, Presuming Innocence, 55 OKLA. L. REV. 257 (2002); Steve Sheppard, The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, 78 NOTRE DAME L. REV. 1165 (2003); Scott Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 HASTINGS L.J. 457 (1989); Jeff Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 WIS. L. REV. 441 (1978); and William S. Laufer, The Rhetoric of Innocence, 70 WASH. L. REV. 329 (1995).
28. United States v. Andujar, 49 F.3d 16 at 24 (1st Cir. 1995). They added: “We repeat here that, due to the risks of misleading the jury, district courts should refrain wherever possible from using a “guilt or innocence” comparison in their jury instructions” (id.).
29. The trial judge's actual instruction was this: “You are instructed that the defendant is presumed to be not guilty of the crime charged against him… unless his guilt is established by evidence beyond a reasonable doubt and that presumption of being not guilty continues… unless every material allegation… is proven by evidence beyond a reasonable doubt.” Flores, v. State, 1995 OK CR 9.
30. The appellate court referred to the Flores judge's “infamous ‘presumed not guilty’ instruction.” Flores, 1995 OK CR 31.
31. Some courts have had the temerity to suggest that the PI may require that the juror assume the initial probability of guilt of a defendant is zero. The Supreme Court of Connecticut opined: “If we assume that the presumption of innocence standard would require the prior probability of guilt to be zero, the probability of paternity in a criminal case would always be zero because Bayes’ Theorem requires the paternity index to be multiplied by a positive prior probability in order to have any utility. In other words, Bayes’ Theorem can only work if the presumption of innocence disappears from consideration.” State v. Skipper, 637 A.2d 1101 at 1107 (Conn. 1994). The court might have concluded instead that the PI is viable only if it permits assigning some positive magnitude to the probability of guiltm.
32. Richard Friedman, for instance, writes: “A conscientious juror would start with prior odds [of guilt] not of 1:1 but of 1:X, where X is a large number perhaps on the order of the entire population of people who might have committed the crime.” Friedman, A Presumption of Innocence, Not of Even Odds, 52 STAN. L. REV. 873 (2000), at 885.
33. A Texas appellate court has previously noted this problem: “if every juror, by law, had to believe the defendant is actually innocent prior to reaching a verdict, then every juror would have to believe the defendant is innocent when voting on a verdict. And if every juror believed the defendant is innocent at the time he or she votes, what must the verdict inevitably be?” Miles v. State, 2004 Tex. App. LEXIS 9788 (Tex. App. 2004).
34. The Fourth Federal Circuit put the point this way: “A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant's innocence.” United States v. Isom, 886 F.2d 736 at 738 (4th Cir. 1989).
35. Richard Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477 (1999), at 1514.
36. The great nineteenth-century legal theorist Thomas Starkie captured the widespread sentiment I am criticizing when he insisted that: “What circumstances will amount to proof can never be [a] matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury.” THOMAS STARKIE, A PRACTICAL TREATISE OF THE LAW OF EVIDENCE 513 (Benjamin Gerhard ed., 6th ed. 1842; 1837).
37. Jackson v. Virginia, 443 U.S. at 315 (1979). Similar sentiments can be found inter alia in Accord Johnson v. Louisiana, 406 U.S. 356 at 360 (1972); In reWinship, 397 U.S. at 364 (1970).
38. Larry Laudan, Is Reasonable Doubt Reasonable? 9 LEGAL THEORY 295 (2003).
39. See, especially, Ron Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. RW. 604 (1994); and Ron Allen, Constitutional Adjudication, the Demands of Knowledge, and Epistemological Modesty, 88 NW. U. L. REV. 436 (1993).
40. Holland v. United States, 348 US 121(1954). The court opined that “the instruction on circumstantial evidence is confusing and incorrect.” Id. at 139-140.
41. HARRY KALVEN, Jr., & HANS ZEISEL, THE AMERICAN JURY 67 (1966).
42. The appellate court wrote: “The presumption of innocence commands the jury to start their deliberations from the premise there exists an absence of guilt while the presumption of not guilty conveys there exists an absence of sufficient proof of guilt. While the distinction is subtle, we find it amounts to an impermissible lessening of the burden of proof by expanding the degree of doubt that is permissible.” Flores, 896 P.2d 558 at 562.
43. The Supreme Court takes a similar view: “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if a juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717 at 723 (1960).
44. Frederick Schauer and Richard Zeckhauser, On the Degree of Confidence for Adverse Decisions, 25 J. LEGAL STUD. 27 (1996), at 31.