Why do we have to prove someone is guilty of a crime by the standard “beyond a reasonable doubt?” Those words do not appear anywhere in our Constitution; not in the Bill of Rights, nor in any federal enactment. (I’ll let you ponder that for moment…. while we’re waiting, it is worth noting that we – the lawyer-types – often forget the power of judicial pronouncements in effecting behavior. I’m going to come to that in another post somewhere about the greatest gift ever offered to mankind. By the British. The same people with the terrible cooking, dry humor, and quaint accents.)
Okay, long enough.
The origins of the term – and even “presumption of innocence” – are detailed at length by the Supreme Court in Coffin v. United States, 156 U.S. 432 (1895). The idea stems from the Latin maxim “necessitas probandi incumbit ei qui agit”; this is the ordinary rule that “the necessity of proof lies with he who complains.” There is a similar notion that “ei incumbit probatio qui dicit, non qui negat” – “the burden of proof rests on who asserts, not on who denies.” Latin, a great appeal to…. a dead language.
In Coffin, the Supreme Court explained that the legal requirement of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence and “[t]he 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.” Coffin, 156 U.S., at 453. The Court went on to demonstrate, using concrete examples, exactly why this requirement exists and is so philosophically important to the administration of criminal justice.
“It is stated as unquestioned in the textbooks, and has been referred to as a matter of course in the decisions of this Court and in the courts of the several states. . . (citations omitted) Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius Do 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: (some omitted) “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, Tit. XX, 1, l. 25.”
Coffin, 156 U.S., at 454, (some citations omitted).
To put more than philosophical point on it, the Court recognized in its analysis that the presumption of innocence and the requirement of proof beyond a reasonable doubt on all elements of an offense by the accuser reflect a principled decision about who should carry the burden of proof in matters that may result in a deprivation of liberty – or even life. The Court provides a very concrete example of this allocation and the exact reasons why:
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 human maxims of that system, preserved for mankind by the canon law.
Coffin, at 455 (some citations omitted).
The Court in Coffin, in sorting through the annals of both the common law of England, as well as reaching back to the canons of Roman law, was well-aware that “[i]n 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.” Id., at 456 (citing Lord Hale, 2 Hale P.C. 290 (1678)).
The Court has reaffirmed this distinction in a number of cases leading forward from Coffin. See, e.g., Tot v. United States, 319 U.S. 463 (1943)(provisions of the Federal Firearms Act invalid that allowed presumption to establish interstate commerce and require accused to disprove the presumption); Speiser v. Randall, 357 U.S. 513 (1958)(California statute invalid which allocated burden of proof on taxpayers to prove that they were qualified for a tax-exemption by declaring a loyalty oath); In re Winship, 397 U.S. 358, (1970)(explicitly holding “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).
Now, whenever I hear someone gripe about OJ or some other “miscarriage of justice” – I don’t know, take Casey Anthony if you like, or some other person whom you think is undeniably guilty and wasn’t convicted – just remember these names (and look them up if you’re curious enough): Michael Morton (25 years), Cornelius Dupree (30 years), James Bain (31 years), Lawrence McKinney (35 years), Anthony Graves (16 years – 14 on death row), John Thompson (18 years, 14 on death row), and a much, much longer list of innocent people (not people who couldn’t be proven guilty, but people who were no-shit innocent, who spent a lot of years either in federal prison or facing death (a few of them days or hours from their execution). And try to imagine what it would be like to be innocent and rotting away, convicted of a crime you didn’t commit.
The come talk to me about the burden of proof being too high… AFTER you’ve spent some time talking to these people.