Blast From the Past: The History of the Presumption of Innocence

Published on Talk Left, the politics of crime, by Jeralyn, Section Crime Policy, August 18, 2010 – (see also: Coffin v. United States – Blast From the Past: The History of the Presumption of Innocence, and Presuption 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 … //

… 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.

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 … (full long text).

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