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More innocent than before.

Posted by Lewis on July 21, 2003

In Reply to: Not again! Brave New World posted by Lewis on July 21, 2003

: : : : We often hear that the United States Constitution guarantees that an accused is "..innocent until proven guilty.." in a court of law. I have done a word by word search on a site that claims to present the complete text of the US Constitution and I cannot find the words "guilty" or "innocent". Are they in the Constitution? If not, where did the phrase "..innocent until proven guilty.." originate?

: : : The Fifth Amendment of the U.S. Constitution reads, in part, "No person shall be ... deprived of life, liberty, or property without due process of law ..."

: : : What this means, in plain terms, is that constitutionally you cannot be executed, imprisoned, or fined without the proper course of justice taking place.As you found out, due process, itself, is not defined in the constitution, but is universally recognized as meaning what we term as "a fair trial."

: : : Going forward from there, a fair trial by a jury of one's peers requires that the jurors approach the case with the thought that the prosecution is required to prove the defendant guilty beyond a reasonable doubt. Since the trial begins with the prosecution not having introduced a single piece of evidence, it follows that a defendant must be innocent, until proven guilty.

: : So, the meaning of "..innocent until proven guilty.." derives from the fifth amendment but who coined the phrase?

: It may amaze a certain segment of the American population, but there were laws before the United States had been discovered by Old-Worlders, let alone before it had a Constitution.

: I cannot say whether "the presumption of innocence" is derived from Greek, Roman, Mosaic Law or even of that of Hammurabi, but I am 100% certain that it pre-dates the American Constitution by approaching the odd millenium, even in Europe.

: "The presumption of innocence" that a person is "innocent until proven guilty" is the Golden Thread that runs through (criminal) law. It was what is known as "common law" and although it has appeared in statutes (Acts and suchlike) and been varied from time to time, it is part of what people would consider "natural justice".

: The criminal burden of proof is not that a person is guilty just because it is "more likely than not" that they did something, but if there is any "reasonable doubt" about guilt, then that person is entitled to be acquitted. That is the "burden of proof" in criminal trials and it rests upon the precept that a person is only "guilty" after a fair trial - or as you may say "due process of law".

: Please think about what you ask - the world was quite an interesting place even before Europeans settled in North America and when they went over, they still had, say 300 years (1492-1776), without a national identity or corporate logo. 1776 was NOT the beginning of the world and to suggest it was would be to risk several billion Chinese people laughing at once.

To follow up my last post - I found this on Talkleft website - an American site, I may add.

Quite long, but worth a read.

The History of the Presumption of Innocence
It is better than 5, 10, 20, or 100 guilty men go free than for one innocent man to be put to death. This prinicple is embodied in the presumption of innocence. In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy. [also, Alexander Volokh wrote a law review article on the issue, available free here.]

The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence--by informing the jury that a defendant is presumed innocent. The Court stated,

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

In tracing the presumption of innocence, the Court goes on to state:

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, § § 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, § 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

[click on more to read additional quotes]

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent." Dig. L. XLVIII, Tit. 19, 1. 5. "In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56. "In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2. "In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence . Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says: "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae, Amos' translation, Cambridge, 1825.

[*456] Lord Hale says: "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case , 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

The Coffin case was later overruled on other grounds, having nothing to do with these principles