Crim Law and Philos DOI 10.1007/s11572-013-9230-0 ORIGINAL PAPER

Who is Presumed Innocent of What by Whom? Carl-Friedrich Stuckenberg

 Springer Science+Business Media Dordrecht 2013

Abstract The article analyses the components of the presumption of innocence and tries to clarify some of the conceptual and logical difficulties surrounding the notion of ‘innocence’ and the structure of legal presumptions. It is argued that all conceivable literal interpretations of the maxim make little or no sense, and that the presumptions form is, as such, devoid of original content: presumptions do not explain nor justify anything but are auxiliary norms which refer to the legal consequences spelled out in other norms. Therefore, the presumption of innocence can be used to express any kind of requirement and standard for the criminal process and the treatment of suspect citizens only in a tautological, albeit rhetorically forceful, way. This instrumental use of the presumption of innocence is theoretically without merit but can be practically beneficial as long as there is no developed system of fundamental rights and protections of individual freedoms in a given legal order. Finally, a functional understanding of the presumption of innocence is proposed which gives it an original, though limited field of application as a guarantee of the procedure itself, in particular of the openness of the outcome. Keywords Presumption of innocence
Burden of proof
Legal presumptions
Benefit of doubt
In dubio pro reo
Due process
Proportionality
Procedure
Openness Abbreviation Dig. Digesta

This paper was prepared for the workshop on the presumption of innocence held at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School in May 2012. C.-F. Stuckenberg Rheinische Friedrich-Wilhelms-Universita¨t Bonn (University of Bonn), Bonn, Germany C.-F. Stuckenberg (&) Strafrechtliches Institut der Universita¨t Bonn, Adenauerallee 24-42, 53113 Bonn, Germany e-mail: [email protected] URL: http://www.jura.uni-bonn.de/stuckenberg

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Introduction Good men everywhere praise the presumption of innocence.1 The presumption of innocence enjoys worldwide recognition as a fundamental procedural guarantee and has acquired the status of a human right, as it is enshrined in international2 and regional3 human rights instruments and forms part of the written4 or unwritten5 constitutional law of many nations. Today, there seems to be no legal order left which openly rejects the maxim.6 This universal acclaim of the presumption of innocence is sharply contrasted with the fundamental insecurity about its meaning.7 Whereas some states limit its application to the trial phase (e.g. where it places the burden of proof upon the state),8 others extend it to the pretrial and sentencing phases (where it contains pretrial detention or the use of unadjudicated or acquitted behaviour for sentencing purposes)9; many states restrict its application to the criminal process whereas others view it as a general maxim applicable also in private law, family law, labour law and administrative law10 contexts. While the presumption of innocence resembles a legal wallflower with no practical relevance in some states, it is frequently invoked in others and even sometimes used as a procedural cure-all. In many legal orders, extensive doctrinal debates on the presumption of innocence exist which are often marked by an unusual amount of controversy. No other fundamental or human right has produced a comparable scope of divergent and even extreme interpretations ranging from ‘logical absurdity’,11 ‘platitude’, ‘piece of high-flown rhetoric’12 to natural law maxim13 and indispensable foundation of a 1

Fletcher (1968a), 880.

2

Art. 11 para. 1 of the Universal Declaration of Human Rights of December 10, 1948; art. 14(g) of the International Covenant on Civil and Political Rights of December 16, 1966.

3

Art. 6 para. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950; art. 8 para. 2 of the American Convention on Human Rights of November 22, 1969; art. 7(1)(b) of African (Banjul) Charter on Human and Peoples’ Rights of June 27, 1981.

4

E.g. Italy (Art. 27 of the constitution), Canada (sec. 11(d) Charter of Rights and Freedoms).

5

E.g. in the federal constitutional law of the United States of America and Germany.

6

The People’s Republic of China formerly rejected the presumption of innocence as self-contradictory remnant of bourgeois legal thought, e.g. Yu Shutong (1992), 322–323; Gelatt (1982), but has adopted new legislation with Western-style guarantees like the presumption of innocence in article 12 of the Amended Criminal Procedure Law of 2000, see Wei Luo (2000).

7

Ashworth (2006), 243; Schwikkard (1998), 396; see also Stuckenberg (1997), 3–5 and 11–437 with comparative materials from over 20 legal orders.

8

E.g. in American federal law since Bell v. Wolfish, 441 U.S. 520, 532–533; 99 S.Ct. 1861, 1870–1871; 60 L.Ed.2d 447 (1979). For a recent critical account see Baradaran (2009).

9 10 11

E.g. the member states of the European Convention of Human Rights. E.g. in Spain, see Va´zquez Sotelo (1984), 294–300, 352–353; Stuckenberg (1997), 231–233. Manzini (1970), 53–54.

12

Fletcher (1968b), 1220. Interestingly, the presumption of innocence appears to have been immensely popular in German court proceedings of the seventeenth century because Ludovici (1700), § 5, remarked in his dissertation, presided by Thomasius, that it would unfailingly be invoked in every defence even of the basest good-for-nothing, and that defence counsel would not be ashamed to invoke it even if the devil would be accused before God (‘… vix defensionem etiam nequissimi nebulonis suscipi videas, ad quam eo felicius expediendam non ad partes illud trahatur. Immo, si casus esset dabilis, ad quem haud raro provocare solent Criminalistae, ut scilicet Diabolus criminaliter accusaretur, ipsique tunc Defensio concederetur (uti juxta Dd. fieri deberet,) non defuturos credo, qui & hoc ferculum Judici apponere haud erubescant.’). 13 Lega and Bartoccetti (1950), 818; Motzenba¨cker (1958), 288, 323.

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just criminal process.14 Obviously, the widespread agreement about the desirability of a presumption of innocence refers to the name rather than the content of the principle, since this content is far from being clear and universally agreed. The aforementioned controversies suggest that there is probably not one or the presumption of innocence, i.e. not one legal norm or legal principle, but possibly several norms or principles that can be brought under the label of the ‘presumption of innocence’. In light of the confusion and conflict surrounding the presumption of innocence, it may be worthwhile to start with a closer examination of the wording, which appears to be the only uncontroversial element of our maxim. This paper analyses the components of the presumption of innocence and hopes to clarify some of the recurrent conceptual and logical difficulties associated in particular with the notion of ‘innocence’ and the structure of legal presumptions. This analysis is not aimed at a conclusive result of what the presumption of innocence ‘really is’ or ‘says’ but at the reduction of confusion. It hopes to show whether a literal understanding is possible and advisable or, on the contrary, whether the presumption of innocence must be regarded as the imperfect formulation of an abstract maxim, which should or must not be taken literally. It may also reveal which additional assumptions are needed for a sensible interpretation of the presumption of innocence.

The Components of the Presumption of Innocence Innocence Unlike the old Continental European common law (ius commune) which contained general presumptions of goodness and law-abiding behaviour (quilibet praesumitur bonus, et legalis, et innocens …) and distinguished between religious, moral and legal innocence,15 the notion of ‘innocence’ is nowadays used almost exclusively in a criminal law context. Whereas in some jurisdictions ‘innocence’ means the absence of ‘guilt’ understood as the totality of the substantive requirements of punishment (presence of the elements of the offense, absence of reasons for justification and excuse), it is controversial in others whether innocence should be restricted to the absence of wrongful behaviour, i.e. the (positive or inculpatory) elements of the offense. Analytically, it is preferable to equate innocence with the absence of—at least one of—the conditions necessary for punishment, whether they are positively (e.g. commission of an incriminated act) or negatively defined (e.g. lack of justification or excuse). This basic notion of ‘innocence’ needs further elucidation because it can be used in four different ways: 1. As a true statement about reality (in the naive sense): ‘Innocence’ then means that a person is not punishable because she either did not engage in prohibited conduct or was justified to do so or for some other reason was not responsible. 2. As the negation of a conviction of a criminal offense, i.e. the totality of all substantive and procedural conditions for the execution of punishment, which includes the completion of criminal proceedings, has not been fulfilled. In this sense, a person is innocent of a crime if he has not (yet) been convicted of it. 3. As the result of the finding of fact in a given criminal procedure, and this in two senses: 14

Coffin v. United States, 156 U.S. 432, 453; 15 S.Ct. 394; 39 L.Ed. 481 (1895).

15

For further references see Stuckenberg (1997), 11–31, 438–441.

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a. ‘innocence’ can mean ‘proven innocence’ (innocentia); the finder of fact is convinced that the accused is not punishable because he did not do it, was justified … and so on; b. ‘innocence’ can also mean that the standard of proof required for the establishment of guilt (beyond reasonable doubt, conviction intime, certezza morale) was missed (non repertus culpabilis, ‘not proven’). Not all these senses are synonymous: guilt or innocence found at trial need not correspond to real guilt or innocence, although a trial usually seeks to achieve this. For clarity’s sake, one should distinguish between these different notions of innocence although they are often mixed up.16 Hereafter, a statement about the real existence or absence of the totality of the substantive conditions of punishment will be called ‘real guilt/ innocence’, and the existence or absence of the totality of conditions for the imposition (or execution) of punishment is called ‘formal guilt/innocence’. Guilt and innocence in the real sense (1) are contradictories characterized by exclusivity and reversibility: the negation of one necessarily entails the affirmation of the other and vice versa, tertium non datur. This is also true for guilt and innocence and in the formal (2) sense. Innocence and guilt in sense (3) behave differently because they are objects of a statement or proposition, e.g. ‘the court finds that (D is guilty)’ or ‘it is proven that (D is guilty)’, so that more than two possibilities exist because the expression can be negated internally and externally. Hence, statements about e.g. the proof of guilt or innocence are contraries, which cannot be simultaneously affirmed but simultaneously negated, and the negation of one does not entail the affirmation of the other. E.g. ‘nonproof of (guilt)’ does not imply ‘proof of (innocence)’ because of the further possibility that nothing can be proven (non liquet).17 Although logically distinct, proof of innocence (3a) and failed proof of guilt (3b) can be treated alike on a normative level18 if the legislator so chooses. The assimilation of proven innocence and insufficient proof of guilt is often regarded as a consequence of the presumption of innocence or the in dubio pro reo principle (viz. benefit of the doubt) since the end of the eighteenth century.

16 Beccaria (1764) managed to use three senses of ‘innocence’ and its opposite, ‘guilt’, in one paragraph in ch. XVI in his famous treatise: ‘Un uomo non puo` chiamarsi reo prima della sentenza del giudice, ne` la societa` puo` togliersi la pubblica protezione se non quando sia deciso ch’egli abbia violati i patti, co’quali gli fu accordata.’ [A person cannot be called guilty before the verdict of the judge … = sense (2)] ‘Quale e` dunque quel diritto, se non quello della forza, che dia la podesta` ad un giudice di dare una pena ad un cittadino, mentre si dubita se sia reo o innocente?’ [What kind of right is it if not of the stronger which gives a judge the power to punish a citizen while one is still in doubt if he is guilty or innocent … = sense (1)] ‘se {il delitto} e` incerto non devesi tormentare un innocente, perche` tale e` secondo le leggi un uomo, i di cui delitti non sono provati.’ [if the crime is uncertain, one must not torture an innocent because according to law, a person is innocent if his crime has not been proven … = sense (3)], ‘S’egli e` vero che sia maggiore il numero degli uomini che o per timore, o per virtu` rispettano le leggi che di quelli che le infrangono, il rischio di tormentare un innocente deve valutarsi tanto di piu`, quanto e` maggiore la probabilita` che un uomo a dati uguali le abbia piuttosto rispettate che disprezzate.’ [If it is true that the number of people who observe the law because of fear or virtue is greater than the number of people who break it, the risk to torture an innocent increases in proportion to the probability that a person in the same circumstances has rather obeyed than broken the law … = sense (1)]. 17

Cf. Stuckenberg (1997), 442–447.

18

E.g. Wolff (1748), § 673: ‘Nemo puniri potest, nisi delicto aut crimine sufficienter probato, seu nisi ejusdem convictus. Etenim quamdiu sufficienter probatum non est, delictum aut crimen ab eo, qui accusatur, vel suspectus habetur, fuisse perpetratum, pro reo haberi nequit, consequenter pro innocente habendus […]’.

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Presumptions At least since Alciatus’s seminal 1538 treatise, the nature of legal presumptions is often described as obscure and confusing.19 One source of confusion is the ordinary language concept of presumption in the sense of considering a fact or an event possible or probable because of a perceived causal or statistical connection between a given basic fact and the presumed fact/event. Inductive inferences of this kind are usually called praesumtiones hominis or ‘permissive inferences’ when they occur in the course of the evaluation of evidence by the finder of fact at trial; though legally relevant, they are not legal norms but assumptions about the real world. The two classical categories of legal presumptions are praesumtiones iuris and praesumtiones iuris ac de iure. The latter category can be neglected here because these irrebuttable presumptions or legal fictions are merely modifications of substantive norms, whereas the presumption of innocence seems to belong to the family of rebuttable presumptions. I will follow Jerzy Wro´blewski’s (1974) analysis here because of its clarity. He reconstructs legal presumptions as a class of legal norms (normes juridiques) that contain an element of ought (command, prohibition, permission) and are meant to influence somebody’s behaviour. Thus, legal presumptions are not factual statements about the world although they could command somebody to make such a factual statement. Legal presumptions share the conditional structure of other norms. Their components usually comprise a positive premise (factual basis) and a negative premise (counter-evidence) and the legal consequence (to treat the presumed object as existent/given/proven, see infra). The factual basis may be lacking or, more precisely, not be spelled out because it is always or usually present—then we have what Wro´blewski calls a ‘formal presumption’, also known as ‘interim truth’ or unconditional presumption/assumption, like the presumption of innocence. The negative premise is always present and specifies the requirement of counter-evidence to rebut the presumption which can be expressed as a simple condition (ne contrarium probetur, unless proven guilty) or as a temporal sequence (donec contrarium probetur, until proven guilty). As legal norms, legal presumptions do not depend on the existence of empirically verifiable causal or probabilistic relationships between basic fact and presumed fact. Such relationships may, however, form part of the legislative motive to create a presumption. Accordingly, Wro´blewski distinguished ‘para-empirical’ presumptions which are modelled on factual inferences (although their legal force persists irrespective of their empirical validity) and typically serve evidentiary purposes, ‘non-empirical’ presumptions which serve different purposes (like the allocation of the burden of proof) but may be rebutted empirically, and ‘anti-empirical’ presumptions which do not conform with or even contradict empirical knowledge (like the ‘witch tests’ of the past). The presumption of innocence is obviously a non-empirical presumption.

19 Alciatus (1538), pars I § 1, col. 575: ‘Materia quam aggressuri sumus valde vtilis est, & quotidiana in practica; sed confusa, inextricabilis fere’; see also McCormick (1992), § 342 p. 449: ‘One ventures the assertion that ‘‘presumption’’ is the slipperiest member of the family of legal terms, except its first cousin, ‘‘burden of proof’’’; Thayer (1898), 352: ‘Some [presumptions] are maxims, others mere inferences of reason, others rules of pleading, others are variously applied; as the presumption of innocence figures now as a great doctrine of criminal procedure, and now as an ordinary principle in legal reasoning, or a mere inference of common experience, or a rule of the law of evidence. Among things so incongruous as these and so beset with ambiguity there is abundant opportunity for him to stumble and fall who does not pick his way and walk with caution.’; see also Stuckenberg (1997), 447–494.

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It is a particularity of presumptions that their legal consequence is not spelled out directly and explicitly; instead, a presumption constitutes (or negates) the (minor) premise of another norm and thus indirectly triggers the consequence of that norm. Therefore, presumptions are referral or renvoi norms that perform auxiliary functions only. Viewed in isolation, presumptions are incomplete norms, mere norm particles without the usual legal consequence, i.e. they do not command us what is to be done. Although it is seductive to take presumptions for statements about reality and to reify the presumed object (fact, event, state of affairs), this is erroneous because it overlooks their normative character. The scope of application of a presumption, i.e. the norms it refers to, is determined in a strictly normative way. Like any other legal norm, a presumption does not have a ‘natural’ field of application; it may serve a narrow purpose and apply only in very specific situations or it may have a broad, near universal scope of application. Historically, presumptions have typically been used as auxiliary norms in the process of judicial fact-finding, as is evidenced by the standard formulation of the negative premise: ‘proof of the contrary’. The use of presumptions outside the trial situation is of course possible but presupposes a corresponding normative decision. It follows neither from the concept nor the structure of legal presumptions in which contexts they apply, whether only at trial or, on the contrary, anywhere and anytime. Hence, neither the opinion of the U.S. Supreme Court that the presumption of innocence operates only at trial20 nor the opposite view of the European Court of Human Rights that the presumption of innocence governs criminal proceedings in their entirety from the earliest beginnings of a prosecution onwards21 can be deduced from the ‘nature’ of presumptions but need the support of additional arguments. It seems useful to note here that many legal norms can be rephrased as presumptions without alteration of content. Any norm that positively prescribes a necessary condition (biconditional) for a specified legal consequence can be transformed into a negatively worded presumption of the opposite of that condition. For instance: If and only if a crime is proven beyond reasonable doubt, then its author shall be punished. This norm can be split into two parts: If and only if a crime is proven beyond reasonable doubt, then its author is ‘guilty’ of that crime. If and only if someone is ‘guilty’ of a crime, then he shall be punished for it. The converse of this norm is: If a crime is not proven beyond reasonable doubt, then its author shall not be punished. This can again be expressed in two steps: If a crime is not proven beyond reasonable doubt, then its author is ‘not guilty’ of that crime. If someone is not guilty of a crime, then he shall not be punished for it. The first part can be rephrased as a formal presumption (interim truth) as follows: Unless/until a crime is proven beyond reasonable doubt, nobody is (presumed to be) guilty of a crime. 20

Bell v. Wolfish, supra note 8.

21

Minelli v. Switzerland, European Court of Human Rights, series A 62 (1983), para. 30.

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This can be converted and abbreviated into: Everybody is presumed innocent until proof of the contrary. Formal presumptions of this type are logically identical with a positively worded norm. In particular, the requirement of proof or the placement of the burden of proof does not follow from a presumption, which is just another expression of that requirement. A presumption is neither the cause nor reason nor explanation of a proof requirement or onus probandi rule but merely a redoubling, a tautology of that rule. More generally speaking, any requirement of formalized reason-giving which presents a necessary condition for a change of status can be rephrased as a presumption for the continuation of the status unless/until the reasons for the change have been given. As mentioned before, a common source of error and confusion lies in the inclination to interpret all presumptions as para-empirical inferences, reify the presumed object (the status quo) and phrase it as a ‘real’ fact although, in many instances, the correct interpretation would be that the required reason-giving has not yet taken place. This becomes evident in examples of interim truths that are less flattering than the presumption of innocence. For instance, if citizens are required to pass an examination in order to prove that they are capable of driving a car safely, this could be expressed in the presumption that everybody is unable to drive safely until the examination has been passed. If applicants for civil service positions are required to pass a medical check, a legal presumption that all applicants are sick until proven healthy would be functionally equivalent but evidently misleading. The Presumption of Innocence as Legal Presumption If the presumption of innocence is regarded as a legal presumption, this does not say much about its precise content. Everything depends on how the components of the presumption are defined. According to Wro´blewski (1974), this is a matter of normative determination. There is no way to deduce a ‘correct’ understanding of the presumption of innocence solely from the presumption structure. Factual Basis (‘Who?’) The classical versions of a presumption of innocence omit a factual basis for the presumption. Some authors proposed to base the presumption of innocence on the state of suspicion because the presumption would not be needed otherwise. Wro´blewski thought that no factual basis has to be proven so that the presumption applies everywhere. If the presumption of innocence is supposed to protect the individual against state power, it seems more plausible to base it on the most general fact—to be an individual human being. Otherwise, if only suspected persons were presumed innocent, persons who are not suspects but are prosecuted for purely arbitrary reasons would not benefit from the presumption. In most practical instances where the presumption of innocence is discussed, however, an individual is at least suspected to have broken the law. Presumption of ‘Real’ Innocence It is possible to construct a presumption that contains ‘real innocence’ as presumed object. This presumption would refer to norms that connect the premise ‘real innocence’ with

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some legal consequence. As seen above, a norm which commands to treat insufficient proof of guilt like proof of innocence can be formulated as a presumption of ‘real innocence’ which is equivalent to the in dubio pro reo maxim. Which means of proof are allowed and which level of certainty is required to rebut this presumption does obviously not follow from the presumption itself but depends on separate normative considerations. Even special presumptions of guilt (e.g. the infamous presumption that a person intends the natural consequences of her acts22) are not logically excluded by a general presumption of ‘real’ innocence.23 A comprehensive prohibition of reverse onus clauses, while reasonable,24 unfortunately does not follow from a general presumption of innocence.25 Outside the trial context, a presumption of ‘real’ innocence does not make sense. To treat a person as really innocent implies that she must not be prosecuted because the affirmation of real innocence excludes not only the affirmation of guilt but also the assumption of the probability of guilt, i.e. the suspicion needed to initiate a criminal investigation. Hence, a presumption of real innocence would become irrebuttable and present a legal absurdity26 as contended by some authors. But, as shown above, it is neither a necessary implication of the normative structure of presumptions to extend their scope of application beyond the trial to any legal situation nor is this necessary to achieve the regulatory aims usually connected with a presumption of innocence. Presumption of ‘Formal’ Innocence A presumption of ‘formal’ innocence says that, before guilt has been established in the prescribed procedure, everybody shall be treated as someone whose guilt has not been established in the prescribed procedure. This is merely the tautological expression of the requirement that specific conditions have to be met in order to (establish guilt and) impose punishment. The negative premise of a presumption of formal innocence, which specifies the requirements of its rebuttal, often contains added normative content like other core procedural guarantees, e.g. in section 11(d) of the Canadian Charter of Rights and Freedoms: Any person charged with a criminal offense has the right … to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

22

D.P.P. v. Smith, [1961] A.C. 291, 331 (H.L.), abolished by s. 8 Criminal Justice Act 1967.

23

Like other legal norms, presumptions are incompatible only if they attach incompatible consequences to the same premise. E.g., an unconditional (formal) general presumption of innocence and an unconditional general presumption of guilt are contraries and cannot both be true. It was generally accepted in the European ius commune which treated presumptions as mandatory inferences that ‘generales praesumtiones iuris specialoribus cedant; […] praesumtiones generales: … quod quilibet praesumatur bonus,’ Heils (1717), caput IV, tit. XLV, p. 181; Farinacius (1597), lib. I., tit. V. de Indiciis & Tortura, quaestio XLVII, no. 285 p. 743; Menochius (1670), liber V, praesumptio I, no. 33, p. 646. 24

Stuckenberg (1997), 521–529; but see Stumer (2010), 152–188; Hamer (2011), 424–434.

25

A general prohibition of incriminating presumptions could be (awkwardly) expressed by a list of corresponding special presumptions of innocence which negate any substantive element of the offense, e.g. that nobody committed an actus reus/had mens rea/acted unlawfully/acted responsibly etc. until proof of the contrary. 26 Manzini (1970), 53–54 and 226: ‘Se si presume l’innocenza dell’imputato, chiede il buon senso, perche` dunque si procede contro di lui?’.

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Theoretically, the negative premise can absorb the totality of substantive and procedural conditions for the imposition of punishment so that every minor procedural error constitutes a violation of the presumption of innocence, which would then serve as the criticized ‘cure-all’27 or comprehensive guarantee of the legality of the criminal process. Since such a super-presumption of innocence is nothing else than a mere redoubling of already existing requirements, it is as unnecessary as confusing and should therefore be avoided. The legal effect of a presumption of ‘formal’ innocence is determined by the norms it refers to, but such norms, which are premised on ‘formal innocence’, are rare. Therefore, it seems that the effect of a presumption of ‘formal’ innocence is limited to the prohibition of regular punishment that has not been authorized by a regular criminal proceeding. This is, however, not the type of wrong that a presumption of innocence is commonly supposed to remedy. The issue is rather to determine the legal status of a person who has not yet been found guilty, which Carbonnier called the statut neutre de l’inculpe´.28 In a strict sense, a presumption of innocence has nothing much to say here—except that e.g. restrictions of a suspect’s liberty cannot be grounded on his being guilty as long as guilt has not yet been established—so that this status must be determined with the help of the relevant fundamental or human rights. Therefore, it does not follow from a presumption of formal innocence whether it applies only to the criminal trial or also the pretrial phase, to civil and administrative proceedings, to retrospective assessments of guilt or also to predictions of future dangerousness and so on. The answers to the questions of what somebody is presumed innocent and by whom require additional normative choices, which are ideally founded on a comprehensive normative concept of the presumption of innocence (infra). Historically, however, in times when systems of fundamental rights were not yet established like in Europe in the Enlightenment era before 1789, a presumption of innocence played a vital role in shielding the accused from the hardships of the criminal process. This was achieved by employing a broad or substantive concept of punishment which allowed to denounce as forbidden punishment not only the regular, legal forms of punishment but also all intrusions on individual rights which looked like punishment, i.e. shared its outer appearance. Formally, torture was not punishment but just a procedural device to produce the confession which was the Biblical prerequisite29 for ordinary punishment (poena ordinaria) when two witnesses could not be found, but phenomenologically, torture resembled the corporal punishments which were then in use,30 and still today

27

De la Oliva Santos in the preface to Vegas Torres (1993), 1–2: ‘Con so´lo un poco de caricatura, dirı´ase que se trata de una regla a´urea, que como el ba´lsamo de Fierabra´s para las ma´s diversas enfermedades, sirve para regularlo casi todo en el proceso penal …’.

28

Carbonnier (1939), 42–43. In a similar vein Ashworth (2006), 251.

29

Deuteronomy 17:6, 19:15.

30

Thomasius (1705), caput II, § 1: ‘Poena itaque potius incerti criminis dicenda, quam medium inquirendae veritatis: quia omnis corporis cruciatus, etiamsi ante sententiam inferatur, poena est’; Voltaire (1879), art. XXIV, pp. 584–585: ‘Quoi! vous n’avez point de preuves, et vous punissez pendant deux heures un malheureux par mille morts, pour vous mettre en droit de lui donner une d’un moment!’; Rousseau (1776), 404: ‘Tout nous montre ou nous fait sentir l’insuffisance des lois et l’indiffe´rence des juges pour la protection des innocents accuse´s, de´ja` punis avant le jugement par les rigueurs du cachot et des fers, …’ But see Hobbes (1651), ch. XXVIII, p. 298: ‘Thirdly, that the evil inflicted by public authority, without precedent public condemnation, is not to be styled by the name of punishment; but of an hostile act; because the fact for which a man is punished, ought first to be judged by public authority, to be a transgression of the law.’.

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it is argued that pretrial or preventive detention violates the presumption of innocence because it looks very much like punitive deprivation of liberty (‘jail is still jail’31). A substantive concept of punishment is useful only if there are no other or better-suited doctrinal tools (e.g. a principle of proportionality or prohibition of excessive restraints, etc.) available; it has also considerable rhetorical force. In legal orders with a developed body of constitutional law and an elaborate system of fundamental individual rights, this rather crude device should be superfluous and therefore discharged, if only for the notorious difficulties of non-positivist definitions of punishment.32 Without recourse to the function of the burden which the state imposes on a citizen, modern forms of punishment like fines cannot be distinguished from taxes, fees etc. Conclusion In sum, the analysis of the structure of legal presumptions can help to avoid some confusion but is unsuitable for determining the content of the presumption of innocence beyond trivial tautologies. The form of a presumption cannot determine which norms it refers to, i.e. what it legally means to be ‘formally innocent’. Different legal orders give different answers here and this is why, for instance, the American presumption of innocence may legitimately differ from her Canadian or European sisters. Presumptions do not explain anything but need explanation: The reasons and value judgments involved in the questions why the state shall bear the burden of proof or why preventive detention shall (not) be allowed and in many other controversial issues should be addressed directly and not be camouflaged by pointing to the presumption of innocence. Some of the tasks for which the presumption of innocence was used in pre-modern times are (should be) nowadays better solved by modern constitutional doctrines. Can the presumption of innocence be more than the rephrasing of already existing norms or a hollow form that can be arbitrarily filled by each legislator? Arguably, there is a way to conceptualize the presumption of innocence that gives it a meaningful and original normative task. This proposal shall be briefly sketched in the concluding chapter33:

A Proposal for a Normative Concept of the Presumption of Innocence The legal consequences typically ascribed to a presumption of innocence presuppose an ordered process of fact-finding, viz. a procedure. Today, in every known secular34 legal 31

Gazer (2005).

32

Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, at 168; 83 S.Ct. 554, 567 f.; 9 L.Ed.2d 644 (1963): ‘Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment – retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.’. 33

For a fuller version see Stuckenberg (1997), 530–543.

34

Presumably, the only penalties which apply automatically after the completion of the deed without the intervention of any type of procedure are the Canon Law’s poenae latae sententiae (canones 1314 et seq., Codex Iuris Canonici 1983) which are exceptional sanctions for grave sins, e.g. excommunication for heresy (canon 1364 § 1) or abortion (canon 1398).

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order, it is not the sheer ‘existence’ of a crime (‘real guilt’) but only the finding of guilt in a prescribed procedure that legitimizes the state’s punishment of an individual. The procedure ends with a decision, which claims to be based on a true statement whether the accused’s conduct is punishable or not. Yet this decision may also be influenced by rules that have nothing to do with truth finding, but serve other purposes like exclusionary rules. Thus, the basis of punishment is always ‘formal guilt’ which is equivalent to Packer’s (1968) concept of ‘legal guilt’. In light of this, one might be tempted to understand the presumption of innocence as a means ‘to protect the innocent,’ that is, to reduce the risk of erroneous convictions. The required level of certainty can be incorporated in the negative (counter-evidence) premise of the presumption (‘until proven beyond reasonable doubt’). However, as seen above, the presumption itself can only express the standard of proof but cannot determine it (whether it should be the preponderance of evidence, the balance of probabilities or moral certainty). Historically, the standards of proof developed independently of a presumption of innocence,35 and the burden of proof always rested on the prosecution since antiquity (cf. ei incumbit probatio qui dicit, non qui negat36 and the corresponding Canon Law rules37 which originally applied to both civil and criminal procedure) because the opposite rule would destabilize any type of social order. Likewise, the popularity of Traianus’s famous aphorism that it is better to acquit a guilty defendant than to convict an innocent,38 which comes in many variations and exaggerations (ten, twenty, n guilty persons …),39 can be explained by the consideration that the opposite maxim would be blatantly oppressive.40 The justification of the standard of proof in criminal cases and of the placement of evidentiary and persuasive burdens can do without a presumption of innocence: rather, it is a question of who shall bear the burden of error caused by the incalculability of proof, the state or the citizen. In a free society where individual liberties are taken seriously, the effect of chance on the outcome of criminal proceedings should be minimized even though it cannot be totally eliminated. Hence, legal presumptions of guilt have been abolished in many European legal orders since the nineteenth century, because these rigid standardized

35

For the reasonable doubt standard see Fletcher (1968a), 880 n. 2; Shapiro (1991), 24–25.

36

Dig. 22, 3, 2 (Paulus).

37

Corpus Iuris Canonici, c. 3 X. de prob. II, 19 and c. 26 X. de sent. II, 27 (‘actore von probante reus absolvitur, etsi nihil praestiterit’); Codex Iuris Canonici 1983, canon 1748: ‘§ 1 Onus probandi incumbit eo, qui asserit. § 2 Actore non probante reus absolvitur.’. 38

Dig. 48, 19, 5, pr.: ‘Absentem in criminibus damnari non debet divus Traianus Iulio Fontoni rescripsit. sed nec de suspicionibus debere aliquem damnari divus Traianus Adsidio Severo rescripsit: satius enim esse impunitum relinqui facinus nocentis quam innocentem damnari.’. 39

Fortescue (1471), ch. XXVII, p. 64–65; Hale (1736), ch. XXXIX p. 289; Blackstone (1769), ch. XXVII p. 352. See also Williams (1963), 186 et seq.; Holdsworth (1908), 620; Best (1844), 58 n. (g) and the extensive collection by Volokh (1998).

40

This applies as well to popular favor rei formulae like Dig. 50, 17, 56 (‘semper in dubiis benigniora praeferenda sunt.’), Dig. 50, 17, 155, 2 (‘in poenalibus causis benignius interpretandum est.’), Dig. 50, 17, 192, 1 (‘in re dubia benigniorem interpretationem sequi non minus iustius est quam tutius.’), Dig. 48, 19, 42 (‘interpretatione legum poenae molliendae sunt potius quam asperandae.’) and Dig. 34, 5, 10, 1 (‘… in ambiguis rebus humaniorem sententiam sequi oportet …’), or Iulianus’s famous answer to Delphidius’s question, reported by Ammianus Marcellinus (1950), lib. XVIII, cap. 1, 4: ‘Ecquis, florentissime Caesar, nocens esse poterit usquam, si negare sufficiet?’ – ‘Ecquis innocens esse poterit, si accusare sufficiet?’ or the so-called Calculus Minervae, Dig. 42, 1, 38 pr. and 1: ‘inter pares numero iudices si dissonae sententiae proferantur, in liberalibus quidem causis, secundum quod a divo Pio constitutum est, pro libertate statutum optinet, in aliis autem causis pro reo. quod et in iudiciis publicis optinere oportet.’.

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inferences increase the risk of inaccurate convictions, and were replaced by the more flexible principle of free evaluation of evidence. Instead, it is argued here that the original function of the presumption of innocence is the protection of the procedure itself. ‘Procedure’ is understood with Niklas Luhmann as a process of finding a decision and is defined by the openness of its outcome; this openness is artificially maintained during the entire time of delay of the concluding decision. If, on the contrary, the outcome of a process is not open, if its aim is not to find a decision but to present and justify a decision already found, it shall not be called a ‘procedure’ but a ‘ritual’.41 The original task of the presumption of innocence is to maintain the openness of the outcome, which is constitutive of a procedure. The suggestive formulation of the presumption of innocence and its often-described rhetorical force42 already provide a counter-weight to an official state of suspicion. As the prohibition on inflicting punishment without the prescribed procedure, the presumption of innocence seems to be nothing more than the tautological expression that a procedure is a necessary condition of punishment. But it can also serve to protect the procedure, notably its openness, against all kinds of interference.43 Such a prohibition to disavow or compromise the relevant procedure entails that the outcome of that procedure must not be anticipated (i.e. treating somebody as guilty before the verdict), nor circumvented nor its outcome subsequently undermined. This seems to simply stress the self-evident, namely the ancient insight that guilt is established only by a conviction and not by mere suspicion or accusation.44 But conceptual clarity alone has proven to be insufficient to effectively influence normative reality. The demand to take a prescribed procedure seriously will persist as long as procedures exist. In this sense, the presumption of innocence is a sort of ‘flank defence’ of a given procedure and is entirely dependent on that procedure (be it trial by battle or ordeal or modern criminal procedure). As seen above, the presumption as such can only express but not determine the shape and the details of the corresponding procedure. However, the presumption can be used instrumentally, i.e. to emphatically convey specific demands or reform proposals how procedural rules should be modified. This instrumental use was frequent during the Enlightenment period. As shown above, the presumption of innocence cannot help to solve the issues of standard of proof, onus probandi, pretrial detention, substantive questions of criminal liability, etc.; which are decided by the standards of rationality, respect for individual liberty, etc. of a given society. Theoretically, the function to protect the integrity of a procedure against compromise is not restricted to criminal proceedings but exists in any type of procedure (most procedures have devices to maintain openness, avoid anticipation, etc.).

41

Luhmann (1978), 38 et seq., 47, 51–52; Luhmann (1993), 207 et seq., 284, 318; Luhmann (1987), 142, 172, 181–182.

42 Cf. Taylor v. Kentucky, 436 U.S. 478, 484; 98 S.Ct. 1930, 1934 (1978) (‘This admonition derives from the salutary effect upon lay jurors. While the legal scholar may understand that the presumption of innocence and the prosecution’s burden of proof are logically similar, the ordinary citizen may well draw significant additional guidance from an instruction on the presumption of innocence.’); Fletcher (1968b), 1212–1220. 43 In this sense Arico` (1976), 123 et seq.; Hassemer (1991), 160; Mu¨ller (1980), 60; Packer (1968), 161; Rogall (1977), 111; Stuckenberg (1997), 519–544; Stuckenberg (1999), 452–458. See also Haberstroh (1984), 290; Hassemer (1984), 40; Savickij (1953), 407. 44 E.g. the eighth century Capitularium Caroli Magni et Ludovici Pii, lib. VII, cap. CCLIX, col. 1674: ‘Nullus quemquam ante iustum iudicium damnet, nullum suspicionis arbitrio iudicet. … Non enim qui accusatur, sed qui convincitur, reus est.’.

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The main consequence of this understanding of the presumption of innocence is the forbidden anticipation of punishment before the procedure has come to the determined end. Hence, it is forbidden to conceive the procedure itself as a form of punishment—to teach the defendant ‘a lesson’45—and to tolerate procedural restraints, which can only be explained as serving punitive purposes. This means that the presumption of innocence also bans a certain type of reasoning: No measure, no restraint may be justified with the pursuit of one of the aims of punishment (prevention, deterrence, retribution, etc.) until the relevant finding of guilt has been made. As a corollary, restraints that are necessary for the orderly conduct of the proceedings (like pretrial detention) or aim at the prevention of future harm (like preventive detention) are not excluded.46 However, it must be carefully avoided that such measures take on a penal character. Therefore, procedural restraints must be such to which all citizens, including the innocent, may justly be subjected, and they must be reversible or at least be compensated in the case of acquittal.47 If the procedure does not end with a conviction, the accused must be fully rehabilitated—his reputation restored to avoid the proverbial semper aliquid haeret—and indemnified because otherwise the outcome of the procedure cannot be said to be truly open. It is therefore consistent with this conception when the European Court of Human Rights forbids the ‘voicing of suspicions’48 and ‘casting doubt on [the defendant’s] innocence’49 after an acquittal has become final. But it is not only the purpose of a measure which is relevant, the outer appearance can be crucial, too: Punishment is a communicative act, so that measures which closely resemble the forms of punishments currently in use will unfailingly be understood as penal sanctions. Insofar, the historical use of the presumption of innocence to combat torture because of its similarity to corporal punishment was not without merit although today, the ban of excessive procedural measures would better be based on modern doctrinal tools like the principle of proportionality, etc. (where available). Nevertheless, the presumption of innocence would also guard the procedure against any threats to the openness or impartiality of the fact-finding, whether from the outside (excessive media coverage/careless police press releases) or from institutional arrangements (defendant appears in court shackled and in prison garb,50 etc.). If the presumption of innocence protects a given procedure, it also protects the distribution of competences to decide on criminal guilt. It is conceivable but not necessary that only criminal courts are deemed competent to find someone guilty of a crime or, on the contrary, that also other courts or agencies can determine guilt if this arises e.g. as a

45

Cf. Feeley (1979) on the sad realities of the handling of cases in lower criminal courts.

46

Tribe (1970), 404–405.

47

Legal orders are reluctant with respect to compensation. In France, the state always assumes the cost of the prosecution, art. 800, 800-1 Code de proce´dure pe´nale (C.p.p.), but never the attorney’s fees, yet compensates for pretrial detention in case of an acquittal, art. 149 C.p.p. Germany compensates the acquitted defendant for pretrial detention, s. 2 Strafrechtsentscha¨digungsgesetz, and pays his attorney fees (standard rates only), s. 467 para. 1 Strafprozeßordnung. 48 Sekanina v. Austria, European Court of Human Rights, series A 266 (1993), para. 30: ‘The voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final.’ Sekanina was frequently confirmed, lastly in Puig Panella v. Spain, App.No. 1483/02, Judgment of 25 April 2006, para. 57. 49

Vostic v. Austria, App.No. 38549/97, Judgment of 17 October 2002, para. 20.

50

Cf. Estelle v.Williams, 425 U.S. 501, 504–505; 96 S.Ct. 1691, 1693; 48 L.Ed.2d 126 (1976).

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preliminary question in other areas of the law. This is rather a matter of internal harmony of decisions51 than a consequence of the presumption of innocence although the Strasbourg court tends to treat a crime as existent only if it has been proven according to law and adjudicated accordingly, e.g. in the context of revocation of probation.52 Insofar the presumption of innocence is conceived here as a guarantee of a given procedure, it protects also the individual involved in that procedure, i.e. the defendant, but only indirectly. In this perspective, it resembles formal principles like the rule of law or due process. Presumably, other constitutional guarantees nowadays play more important roles than the presumption of innocence in the protection of individual liberty. Nevertheless, the restriction of the presumption of innocence to a clearly defined function seems indispensable lest it become, in Healy’s words … impervious to positive definition and incapable of prescriptive formulation or consistent application. As a reason of policy or principle, it is indeterminate in scope and, theoretically, could be invoked as a reason for any decision or rule that seeks to control the jeopardy of the accused by minimising the risks of prejudice, unfairness, error or miscarriage of justice.53

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