The Presumption of Guilt and the English Law of Theft, 1750–1850

2005 ◽  
Vol 23 (1) ◽  
pp. 133-171 ◽  
Author(s):  
Bruce P. Smith
Keyword(s):  
Criminal Law ◽  
United States Supreme Court ◽  
Legal Culture ◽  
The United States ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
Golden Thread ◽  
Criminal Charge ◽  
Anglo American ◽  
Over Time

When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread…runs through the web of the English criminal law. Unhappily Parliament regards the principle with indifference—one might almost say with contempt. The statute book contains many offences in which the burden of proving his innocence is cast on the accused.No principle in Anglo-American criminal law is more vaunted than the so-called “presumption of innocence”: the doctrine that the prosecution must bothproduceevidence of guilt andpersuadethe fact-finder “beyond a reasonable doubt.” The claim that “every man is presumed to be innocent until he is proved guilty” has been described as “dear to the hearts of Englishmen” and as an omnipresent feature of English criminal law. In 1895, the United States Supreme Court declared the “presumption of innocence in favor of the accused” to be “the undoubted law, axiomatic and elementary”—a protection that “lies at the foundation of the administration of our criminal law.” Befitting its lofty stature in Anglo-American legal culture, the presumption has become associated, over time, with that most famous of Blackstonean maxims: “[I]t is better that ten guilty persons escape, than that one innocent suffer.”

Comparative Observations on the Burden of Proof for Criminal Defences

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
Hock Lai Ho
Keyword(s):  
Legal History ◽  
Common Law ◽  
Burden Of Proof ◽  
United States Supreme Court ◽  
General Rule ◽  
The United States ◽  
Reasonable Doubt ◽  
United States Supreme ◽  
Golden Thread ◽  
House Of Lords

This essay analyses the decisions of the United States Supreme Court on the allocation of the burden of proof in relation to criminal defences. The Court seems generally comfortable about letting the accused carry the persuasive burden of proving excuses and justifications. It is seemingly different in those other common law countries where the so-called ‘golden thread’ proclaimed by the House of Lords in Woolmington v DPP holds sway, and where it is accepted as a general rule that the prosecution must disprove beyond reasonable doubt any defence that has been put in issue. This essay explores and tries to explain this difference. The divergence is explicable as a matter of legal history, but at the bottom of it are arguably a conceptual dispute on the offence-defence distinction and competing visions of politics that bear on the theory of the criminal trial.

Forensic Science

2005 ◽  
Vol 33 (3) ◽  
pp. 535-544 ◽  
Author(s):  
Paul C. Giannelli
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Scientific Evidence ◽  
United States Supreme Court ◽  
The United States ◽  
Private Life ◽  
The Third ◽  
Long Run ◽  
Informant Testimony ◽  
Eyewitness Identifications

The United States Supreme Court has long recognized the value of scientific evidence - especially when compared to other types of evidence such as eyewitness identifications, confessions, and informant testimony. For example, in Escobedo v. Illinois, the Court observed: “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Similarly, in Davis v. Mississippi, the Court commented:Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.”

scholarly journals Rethinking the relationship between reverse burdens and the presumption of innocence

2021 ◽  
pp. 136571272110022
Author(s):  
Jackson Allen
Keyword(s):  
Criminal Law ◽  
Criminal Trial ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
General Norm ◽  
The Relationship

Criminal lawyers regard burdens of proof placed on the accused with deep suspicion. Recently, this suspicion has spurred an interest in how to reconcile these so-called ‘reverse burdens’ with the rule that it is for the prosecution to prove guilt beyond a reasonable doubt in a criminal trial. Though views on this differ among commentators, all reach their conclusions by reference to the presumption of innocence (PoI). Unfortunately, such analysis frequently falls prey to a serious error. Namely, the existing literature fails to adequately distinguish the thin conception of the PoI (a trial rule) from a thick PoI (a general norm of the criminal law) or ignores the distinction entirely. In either case, failure to appreciate this distinction and attend to its consequences raises significant doubt that existing analyses of reverse burdens are sound. This article addresses this failure and offers a fresh approach to reconciling reverse burdens and the PoI.

scholarly journals Ex ante Fairness in Criminal Law and Procedure

2012 ◽  
Vol 15 (2) ◽  
pp. 277-332
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Resource Constraints ◽  
Criminal Liability ◽  
United States Supreme Court ◽  
The United States ◽  
Resource Scarcity ◽  
Adverse Conditions ◽  
General Terms ◽  
Death Sentences ◽  
Ex Ante

In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion. The question I ask in this paper is whether we should in fact object to arbitrariness in punishment. The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one that equalizes chances across a class of similarly situated criminals. In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to rank claims reliably by comparative desert, and a pressing need for punishment to be imposed. I call this an ex ante theory of fairness. The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested. Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa. After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure—the Supreme Court’s capital jurisprudence, prosecutorial discretion, judicial sentencing discretion, and “strict” criminal liability—all exhibit an implicit commitment to an equalization of chances rather than of outcomes.

The Historical Analysis of Criminal Codes

2000 ◽  
Vol 18 (2) ◽  
pp. 433-440 ◽  
Author(s):  
Markus Dirk Dubber
Keyword(s):  
United States ◽  
Criminal Law ◽  
Historical Analysis ◽  
The United States ◽  
Penal Code ◽  
Raw Material ◽  
Historical Study ◽  
Model Penal Code ◽  
The Face ◽  
Anglo American

Students of Anglo-American criminal law, historians included, have traditionally had very little to say about criminal codes. This omission is startling in the face of ongoing efforts to codify criminal law since the late eighteenth century, not only in England and the United States, but also in Canada and India. The only historical study of criminal codification in the United States is a survey article that is, strictly speaking, not about codification at all, but about the great men who made codification possible, in particular the forefathers of Herbert Wechsler, the main drafter of the Model Penal Code. The Model Penal Code itself gave no clues as to its historical antecedents, if any. It is regarded, and portrayed itself, as having invented the wheel by starting from scratch, the raw material of the common law.

Forensic Science

2006 ◽  
Vol 34 (2) ◽  
pp. 310-319 ◽  
Author(s):  
Paul C. Giannelli
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Scientific Evidence ◽  
United States Supreme Court ◽  
The United States ◽  
Private Life ◽  
The Third ◽  
Long Run ◽  
Informant Testimony ◽  
Eyewitness Identifications

The United States Supreme Court has long recognized the value of scientific evidence – especially when compared to other types of evidence such as eyewitness identifications, confessions, and informant testimony. For example, in Escobedo v. Illinois, the Court observed: “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the –confession— will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Similarly, in Davis v. Mississippi, the Court commented:Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.”

The Legacy of Feist Revisited – A Critical Analysis of the Creativity Requirement

2002 ◽  
Vol 36 (1) ◽  
pp. 19-102 ◽  
Author(s):  
Guy Pessach
Keyword(s):  
United States ◽  
Copyright Protection ◽  
United States Supreme Court ◽  
The United States ◽  
Copyright Law ◽  
Court Decisions ◽  
United States Supreme ◽  
Minimum Standard ◽  
Labor Skill ◽  
Anglo American

One of the most significant court decisions in copyright law has been the United States Supreme Court's decision in Feist Pub., Inc. v. Rural Tel. Serv. Co., and its path-breaking approach towards the requirement of originality. The grant of copyright protection, in an intangible work, is conditioned upon the fulfillment of the prerequisite of originality. Until the Feist decision, Anglo-American copyright law had a long tradition of interpreting the requirement of originality as imposing a minimum standard of labor, skill or judgment in the production of a work that is not a copy of another work. In Feist, a watershed decision, which had international impact and influence, the United States Supreme Court first introduced the requirement of creativity into Anglo-American copyright law. According to the court's ruling, only works that entail a minimum standard of creativity could pass the threshold of originality and therefore be eligible for copyright protection.

The Fourth Amendment as a Tool of Actuarial Justice: The “Special Needs” Exception to the Warrant and Probable Cause Requirements

1997 ◽  
Vol 43 (1) ◽  
pp. 78-103 ◽  
Author(s):  
Michael S. Vaughn ◽  
Rolando V. del Carmen
Keyword(s):  
United States ◽  
Law Enforcement ◽  
Special Needs ◽  
Criminal Law ◽  
Fourth Amendment ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Managerial Efficiency ◽  
Lower Courts

This article applies the concept of actuarial justice to the “special needs” exception to the Fourth Amendment warrant and probable cause requirements. According to the United States Supreme Court, the “special needs” exception should only apply when the routine interests of law enforcement are not implicated. Lower courts, however, have been instrumental in extending the administrative search doctrine of “special needs” into the realm of criminal law enforcement. The article concludes that as part of the broader movement in criminal justice toward managerial efficiency, the “special needs” exception serves as a tool of actuarial justice by diminishing Fourth Amendment rights.

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