Presumption of Inncocence
Presumption of Inncocence
Presumption of Inncocence
ENAS*
The Presumption of Innocence in the French and
Anglo-American Legal Traditions
Despite evidence that the presumption of innocence was some-
thing more than an instrument of proof, common law scholars in the
nineteenth century reduced the doctrine to an evidentiary rule without
acknowledging the role of the principle as a shield against punish-
ment before conviction in both the civil and common law traditions.
The resulting narrow conception of the presumption of innocence has
since pervaded the legal and public discourse in the United States,
where suspects are increasingly treated as guilty before trial. Using
the French Declaration of Rights of 1789 and the English Prison Act
of 1877 as points of reference, this Article retraces the origins and sub-
sequent development of a fundamental principle of justice whose dual
dimensionrule of proof and shield against premature punishment
has yet to be formally recognized in modern Anglo-American
jurisprudence.
No legal principle of criminal law and procedure has generated
more interest and debate than the rule that one is presumed innocent
until proven guilty in a court of law.
1
This maxim has long epito-
mized the rivalry between the civil law and the common law, as
reflected by the traditional dichotomy between the Latin presump-
tion of guilt and the Anglo-American presumption of innocence.
2
* Associate, Dechert LLP. DESS, University of Paris II-Assas, 1996, DEA, Uni-
versity of Paris I-Sorbonne, 1998, LL.M., Georgetown University Law Center, 2003. I
am grateful to Laura Bedard and Erin Rahne Kidwell, Special Collections and
Archives Department, Georgetown University Law Center, Jennie C. Meade and
Scott B. Pagel, Special Collections Department (French Collection), Jacob Burns Law
Library, George Washington University Law School, Meredith Shedd-Driskel, Rare
Book and Special Collections Division, Library of Congress, Lesley Schoenfeld,
Harvard Law School Library, Fran coise Hildesheimer, Archives nationales de France,
and Charlotte Portelli, Biblioth` eque nationale de France. The views expressed in this
Article are solely the views of the author and do not necessarily represent the views of
Dechert LLP or any client of Dechert LLP.
1. On the origins of this maxim, see infra note 64. To date, over 100 articles on
the presumption of innocence have been published in the United States and England.
2. See, e.g., Sir John Scott on Criminal Procedure, TIMES (London), May 25,
1900, at 11 (At the Society of Arts, yesterday, Sir John Scott . . . was glad that the
British presumption of innocence had prevailed over the Latin presumption of guilt
. . . .); People v. Molineux, 168 N.Y. 264, 291 (1901) (. . . that jealous regard for the
liberty of the individual which has distinguished our jurisprudence from all others, at
107
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108 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
Even though thisartificialdistinction resurfaces from time to
time,
3
today no one would seriously deny the role played by the pre-
sumption of innocence in civil law jurisdictions.
Yet few studies have attempted to trace the development of the
presumption of innocence as a doctrine in both legal traditions.
4
A
close examination of the French and Anglo-American conceptions of
the principle reveals a striking divergence between the two systems.
5
While law students in France learn in great detail that the presump-
tion of innocence has two distinct functions, namely a rule of proof
and a shield against punishment before conviction,
6
their counter-
parts across the Atlantic are taught briefly that the presumption of
innocence amounts to little more than an evidentiary doctrine with
no application before trial.
7
The latter, narrow conception of the pre-
sumption of innocence is prevalent in the American media as well,
where columnists
8
and legal analysts
9
are quick to remind their audi-
least from the birth of Magna Charta. It is the product of that same humane and
enlightened public spirit which, speaking through our common law, has decreed that
every person charged with the commission of a crime shall be protected by the pre-
sumption of innocence . . . .).
3. See, e.g., Innocence and Guilt, WALL ST. J. EUR., May 26, 2000, at 12 (The
lack of a presumption of innocence in the French legal system has long set it apart
from the Anglo-American systems of justice.).
4. For a comparative analysis of the presumption of innocence in the civil and
common law in the nineteenth century, see The Presumption of Innocence in Practice:
A Comparison Between the Common and the Civil Law, 14 CRIM. L. MAG. & REP. 184
(1892).
5. One scholar touched upon the distinctive nature of the presumption of inno-
cence in civil law countries. See Harold J. Berman, The Presumption of Innocence:
Another Reply, 28 AM. J. COMP. L. 615, 622 (1980) (What the presumption of inno-
cence referred to in the French Declaration of Rights, and what it still refers to
primarily, though not exclusively, in the legal traditions of most European countries,
was (and is) the treatment of a suspect or accused person before trial.).
6. See, e.g., Jean-Fran cois Chassaing, Jalons pour une histoire de la pr esomption
dinnocence, in Juger les juges: Du Moyen
Etat.
Ouvrage posthume, compos e en 1778, at 344 (Hambourg, 1782) (An accusation does
not negate the presumption of innocence, and until condemnation there is no cul-
prit.); Jean-Baptiste Jan ety, Journal du Palais de Provence, ou Recueil des Arr ets
rendus depuis les derniers Journalistes, par le Parlement & la Cour des Aides de cette
Province. Ann ees 1775, 1776, 1777 & 1778, at 161 (Aix, 1785) (Does a public officer
not enjoy his condition until a judgment of condemnation? The presumption is always
in favor of innocence declared the lawyer of Me. J er ome, notary, in a case in which
the Parlement of Provence, in a decision dated May 27, 1777, quashed the disciplinary
decision of a College of Notaries taken without Me. J er ome being heard).
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122 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
centuries, the right of the accused to be presumed innocent received
royal blessing when King Louis XVI called it the first of all princi-
ples in criminal matters in his Declaration of May 1788
146
abolishing the humiliating use of the sellette,
147
prohibiting that sus-
pects wear prison garb
148
and imposing the publication of judgments
of acquittal
149
to reinstate accused individuals in the public opin-
ion.
150
Several months later, when representatives of the nation
received the opportunity to voice their grievances at the States-Gen-
eral in Versailles,
151
they referred to the presumption of innocence to
request a better treatment of suspects
152
and their complete absolu-
tion in the event of insufficient evidence.
153
At the National Assembly in Paris on August 22, 1789, a young
deputy of the nobility named Adrien-Jean-Fran cois Duport,
154
shocked by the barbarian usage
155
in France to punish individuals
before conviction, proposed that the presumption of innocence be in-
scribed in the Declaration of Rights, which was unanimously
adopted.
156
Viewed not as a rule of proof
157
but as the right of sus-
pects to be treated with humanity, the presumption of innocence was
expressed in the Declaration of Rights as follows: Every man being
presumed innocent until he has been found guilty, if it shall be
146. D eclaration du Roi, relative ` a lOrdonnance Criminelle 5 (Versailles, 1788)
(This formality openly offends the first of all principles in criminal matters that pro-
vides that an accused, even if sentenced to death in the first instance, is always
presumed innocent in the eye of the Law until his sentence is confirmed on appeal.)
(cited in Carbasse, supra note 118, at 368). The formality in question was the
sellette.
147. Id. at 8. The sellette was a low wooden stool in which the accused was seated
during interrogation. It was particularly humiliating for the accused, who was forced
to stand lower than the judges in an uncomfortable posture.
148. Id. at 9 (It shall be prohibited to strip defendants of the clothes distinctive of
their status . . . .). Cf. DIG. 48.20.2 (Callistrate, De Cognitionibus 6) (stating that a
detainee will only be stripped of his clothing after conviction).
149. D eclaration du Roi, relative ` a lOrdonnance Criminelle, supra note 146, at 10.
150. Id. at 7.
151. Albert Desjardins, Les cahiers des Etats G en eraux en 1789 et la l egislation
criminelle XXIX (Paris, 1883) (cited in Badinter, supra note 6, at 139 n.15).
152. Essaid, supra note 140, at 39.
153. Desjardins, supra note 151, at 317.
154. Pierrette Poncela, Adrien Duport, fondateur du droit p enal moderne, in La
r evolution fran caise et le droit, 17 Droits 139-40 (1993).
155. 8 Archives Parlementaires de 1787 ` a 1860, at 471 (Paris, 1878). During the
debates, Duport stated that he visited the Bastille twice and the cells of the Ch atelet
prison in Paris, which were a thousand times more horrible. Id.
156. Eug` ene Blum, La d eclaration des droits de lhomme et du citoyen: texte avec
commentaires 202 (1902). For an earlier codification, see Constitutionum Regni
Siciliarum Libri III 261 (Naples, Vol. 1, 1773) (1231) (Si tamen accusator in crimine
prius offerat se probare per testes, & si in eorum probatione deficiat, tunc inquisitionis,
& pugnae probatione minime locum habente, reus qui nocens non convincitur, &
praesumitur innocens, absolvatur.).
157. Legal historians have deplored the absence of reference to the presumption of
innocence as a rule of proof in the French Declaration of Rights. See, e.g., Carbasse,
supra note 118, at 374.
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deemed absolutely necessary to arrest him, every kind of rigor used,
not necessary to secure his person, ought to be severely repressed by
the law.
158
If the Old Regime marked the decline of the presumption of inno-
cence as a rule of proof,
159
one could still find judges reaffirming the
right of suspects to be considered innocent before conviction, thus
challenging the common assumption that the protection of the ac-
cused has no place in an inquisitorial system of justice.
III. FROM BRACTON TO THE ENGLISH PRISON ACT OF 1877
In a seminal article published in the Yale Law Journal at the end
of the nineteenth century,
160
James Bradley Thayer argued that the
presumption of innocence constituted nothing more than an instru-
ment of proof casting on the prosecution the burden of proving
guilt.
161
This narrow conception of the presumption of innocence, re-
iterated by Carleton Kemp Allen in the 1930s
162
and endorsed by the
Burger Court in 1979,
163
is contradicted by historical evidence. Con-
trary to widespread belief among legal scholars,
164
the principle
158. Blum, supra note 156, at 472. The words presumed and by the law were
not included in the draft initially submitted by Duport. See 8 Archives Parlementaires,
supra note 155. The pr esomption dinnocence was added to the Dictionary of the
French Academy in 1798. See Dictionnaire de LAcad emie fran caise 358 (1798).
159. Chassaing, supra note 6, at 234. The Roman law principle that the burden of
proof lies on the accuser and not on the accused (actori incumbit probatio) was well
known among French jurists. See, e.g., Carbasse, supra note 118, at 167-68. But in a
legal system in which the confession of the accused was regarded as the queen of
proof and the prohibition of defense counsel the rule in capital cases, suspects were
compelled to prove their innocence. Failure to do so resulted in condemnation, not-
withstanding inconclusive proof of guilt by the prosecution. See, e.g., 1 Laurent
Bouchel, La biblioth` eque, ov tr esor dv droit Fran cois 10 (Paris, 1671) (observing that
the Roman law maxim actore non probante, reus absolvitur had no application in
criminal matters and that suspects had to clear themselves). The jurist Muyart de
Vouglans would make the same observation a century later. See Pierre-Fran cois
Muyart de Vouglans, Institutes au droit criminel, ou principes g en eraux sur ces ma-
ti` eres 68 (Paris, 1757).
160. James Bradley Thayer, The Presumption of Innocence in Criminal Cases, 6
YALE L.J. 185 (1897).
161. Id. at 191.
162. CARLETON KEMP ALLEN, LEGAL DUTIES AND OTHER ESSAYS IN JURISPRUDENCE
293 (1931).
163. Bell v. Wolfish, 441 U.S. 520, 545 (1979) (6-3 decision) (The presumption of
innocence is a doctrine that allocates the burden of proof in criminal trials . . . . But it
has no application to a determination of the rights of a pretrial detainee during con-
finement before his trial has ever begun.). See also BLACKS LAW DICTIONARY 1225
(8th ed. 2004). Contra The Director of Public Prosecutions v. Broderick [2006] I.E.S.C.
34 (Ir.) (citing OCallaghan v. Attorney General [1966] I.R. 501, 513: The presump-
tion of innocence is a very real thing and is not simply a procedural rule taking effect
only at the trial.); R. v. Pearson, [1992] 3 S.C.R. 665, 683 (Can.) (Lamer, C.J.: This
operation of the presumption of innocence at trial . . . does not, in my opinion, exhaust
the operation in the criminal process of the presumption of innocence as a principle of
fundamental justice.).
164. See, e.g., ALLEN, supra note 162, at 258 (I have been unable to discover, how-
ever, that the dogma A man is presumed to be innocent until he is proved guilty, in
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124 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
innocent until proven guilty was formulated in England well before
the nineteenth century. Cited early on by Bracton
165
and William of
Ockham,
166
the canon law maxim quilibet praesumitur bonus, donec
probetur contrarium
167
officially entered English popular culture in
the early seventeenth century when the poet George Herbert re-
corded it in his Outlandish Proverbs.
168
By the end of the eighteenth
century, the maxim had become commonplace in England as evi-
denced by its use in various plays and farces.
169
Throughout the seventeenth and eighteenth centuries, common
lawyers understood the adage in the same manner as the civilians:
an individual before conviction is legally innocent, and he or she can-
the form of a brocard anywhere occurs before the nineteenth century . . . . ); John M.
Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in the
Eighteenth and Nineteenth Centuries, 9 LAW & HIST. REV. 221, 248 (1991) (The pre-
sumption of innocence was not a rule of the criminal courts in Blackstones day . . . .);
Pennington, supra note 65, at 107.
165. Thayer cited Bracton (1210-1268) as the source of the maxim: But let us ob-
serve it in its earlier history. In Bracton, say in 1260, we find it in the most general
form de quolibet homine presumitur quod sit bonus homo donec probetur in con-
trarium. Thayer, supra note 160, at 190. The attribution of the maxim to the common
law would not remain unnoticed. In a letter to Thayer dated April 15, 1897, Univer-
sity of Iowa Law Professor Emlin McClain expressed his satisfaction: My dear Dr
Thayer: Your lecture on Presumption of Innocence, recently received has been read
with very great interest. I had always noticed with some surprise the loose method
pursued by Justice White in tracing the presumption back to the Civilians . . . . See
Papers of James Bradley Thayer (1831-1902) (on file with the Harvard Law School
Library, Box 17, Folder 5). The influence of Roman and canon law on Bracton has
since been established. See, e.g., Gaines Post, A Romano-Canonical Maxim, Quod
Omnes Tangit, in Bracton, 4 TRADITIO 197, 215-17 (1946).
166. William of Ockham (1285-1349), Dialogus (Paris, 1476) (Quia sicut unus-
quisque presumitur bonus nisi probetur contrarium . . . .) (on file with the
Northwestern University Library).
167. Everyone is presumed to be good until the contrary is proved. On the origins
of this maxim, see supra note 66. See also GERARD MALYNES, CONSUETUDO, VEL LEX
MERCATORIA, OR THE ANCIENT LAW-MERCHANT 362-63 (London, 1622) (grounded upon
that maxime of the Ciuile Law, Omnis homo bonus, donec contrarium probetur . . . .);
SIR PETER PETT, THE HAPPY FUTURE STATE OF ENGLAND 382 (London, 1688) (That
Presumption of the Civil Laws, both in our own, and all other Kingdoms . . . to wit,
that every one is presumed to be good, until the contrary be proved by some outward
Action . . . .).
168. GEORGE HERBERT, OUTLANDISH PROVERBS (London, 1640) (All are presumed
good, till they are found in a fault.) (cited in Donald F. Bond, English Legal Proverbs,
51 PMLA 921, 922 (1936)). The jurist Thomas Branch recorded the maxim in 1753.
See PRINCIPIA LEGIS & AEQUITATIS 92 (London, 1753) (Quisquis praesumitur bonus
. . . .).
169. See, e.g., THE UNIVERSAL MUSEUM; OR THE ENTERTAINING REPOSITORY, FOR
GENTLEMEN AND LADIES. CONTAINING NOT ONLY A NUMBER OF ORIGINAL COMPOSI-
TIONS, IN PROSE AND VERSE, BUT ALSO A GREAT VARIETY OF CURIOUS PIECES, BOTH
ENTERTAINING, MORAL, AND POLITICAL 149 (Coventry, 1765) (Why then, Sir, are we to
condemn a ministry by anticipation? By our LAW every man is presumed to be inno-
cent, until the contrary appears.) (alteration in original); HAMPTON COURT: A
DESCRIPTIVE POEM. IN THREE CANTOS. TO WHICH IS ANNEXED, THE PHYSICAL META-
MORPHOSIS; OR, A TREBLE DISCOVERY. A FARCE OF TWO ACTS. BY F. STREETER 69
(Rochester, 1778) (Lady F. Here then, Ill be both ignorant and singular; besides, our
laws suppose all persons, charged with a crime, to be innocent, until they are con-
victed . . . .).
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not be treated or portrayed as a criminal. During the same period, the
maxim was used in English and Scottish courts as another way of
expressing the principle that the burden of proof in civil and criminal
actions lies on the plaintiff and not on the defendant.
A. A Shield Against Punishment
One source readily available at the time Thayer published his
article suggested that the presumption of innocence was something
more than a rule of proof: the Rhode Island Constitution of 1842,
which contains a provision prohibiting, on the basis of the presump-
tion of innocence, any unnecessary act of severity against the
accused.
170
Using language borrowed from the French Declaration of Rights
of 1789,
171
the Rhode Island Constitution, incorporating a provision
already in the Rhode Island Bill of Rights of 1798,
172
expresses a
principle recognized early in the common law.
170. R.I. CONST. art. I, 14 (Every man being presumed innocent, until he is pro-
nounced guilty by the law, no act of severity which is not necessary to secure an
accused person, shall be permitted.) (cited in Jeff Thaler, Punishing the Innocent, the
Need for Due Process and the Presumption of Innocence Prior to Trial,1978 WIS. L.
REV. 441, 460 (citing Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60
GEO. L.J. 1381, 1439 (1972)). In 2000, Oregon became the second state recognizing the
presumption of innocence as a shield against punishment. See OR. CONST. art. XV,
10(2) (stating that the property of a person should not be forfeited by the govern-
ment prior to conviction because a basic tenet of a democratic society is that a person
is presumed innocent and should not be punished until proven guilty.). Although not
mentioned in the U.S. Constitution, the U.S. Supreme Court ruled that the presump-
tion of innocence was constitutionally rooted. Cool v. United States, 409 U.S. 100,
104 (1972).
171. The influence of the French Declaration of Rights on the Rhode Island Consti-
tution of 1842 has been curiously overlooked. One author noticed the similarities
between the two texts without elaborating further. See Meyer, supra note 170. In his
famous work on the French Declaration of Rights, Georg Jellinek, arguing that the
French Declaration was a pale copy of the American declarations, managed to miss
the connection. See GEORG JELLINEK, THE DECLARATION OF THE RIGHTS OF MAN AND OF
CITIZENS 35 (Max Farrand trans., Henry Holt and Co. 1901).
172. THE PUBLIC LAWS OF THE STATE OF RHODE-ISLAND AND PROVIDENCE PLANTA-
TIONS, AS REVISED BY A COMMITTEE, AND FINALLY ENACTED BY THE HONOURABLE
GENERAL ASSEMBLY, AT THEIR SESSION IN JANUARY, 1798, at 79-81 (Providence, 1798)
(An Act declaratory of certain Rights of the People of this State . . . . Sec. 10. Every
man being presumed to be innocent, until he has been pronounced guilty by the law,
all acts of severity that are not necessary to secure an accused person ought to be
repressed.). Section 10 of the Rhode Island Bill of Rights of 1798 reproduces almost
word for word the provision contained in Article 9 of the French Declaration of Rights
of 1789. The similarities between the two texts can hardly be a coincidence. We can
assume that the drafters of the Rhode Island Bill of Rights were familiar with the text
of the French Declaration, which was published in English and American newspapers
shortly after its adoption. See, e.g., Copy of the Declaration of Rights as Finally De-
creed by the National Assembly of France on Thursday, August 27, TIMES (London),
Sept. 3, 1789, at 2; Copy of the Declaration of Rights, THE PENNSYLVANIA GAZETTE,
Oct. 28, 1789; National Assembly of France. Declaration of the Rights of Man and of
Citizens, THE PROVIDENCE GAZETTE AND COUNTRY JOURNAL, June 11, 1791, at 1.
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126 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
Lex Angliae est lex misericordiae
173
proclaimed Sir Edward
Coke in his Institutes of the Laws of England.
174
As early as the thir-
teenth century, English courts ruled that individuals accused of a
felony could not be treated as felons
175
because felony is never fast-
ened on any person before he is by judgment convicted as guilty of the
deed.
176
It followed that suspects would not forfeit their goods or
have their lands seized before conviction,
177
a Roman law principle
178
that became part of the statutes of the realm in the fifteenth cen-
tury.
179
Bracton would emphasize that prisons are only for safe
custody and not for punishment,
180
another Roman law principle
181
later reiterated by Blackstone, who stressed that prisoners ought to
be used with the utmost humanity before trial.
182
The right of sus-
pects to be released on bail, a necessary consequence of the criminal
being presumed innocent,
183
was regulated by statute as early as
1275.
184
As to members of Parliament indicted of felony, they could
remain in function until convicted,
185
for non qui accusatur sed qui
173. The Law of England is a Law of mercy. See also 4 Jac. I, c. 1, 16 (1606) (Eng.)
([I]t is most juste and necessarie to pvide as well that the guiltie shalt not escape, as
that the innocent shall not be condemned . . . .).
174. SIR EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF EN-
GLAND 315 (London, 1669).
175. 1 THE EARLIEST ENGLISH LAW REPORTS 128 (Paul A. Brand ed., Selden Society
1996) (citing a decision of the Court of Common Pleas of 1283).
176. 2 YEAR BOOKS OF THE REIGN OF KING EDWARD THE FIRST: YEARS XXI AND XXII
56-57 (Alfred J. Horwood ed., Longman & Co. 1873) (citing a decision of the Court of
Common Pleas of 1293).
177. ABRAHAM FRAUNCE, THE LAWIERS LOGIKE, EXEMPLIFYING THE PRAECEPTS OF
LOGIKE BY THE PRACTICE OF THE COMMON LAWE 151 (London, 1588).
178. See supra note 56. See also 2 FLETA 66 (London, Bernard Quaritch 1955)
(1290?). Fleta was written in the thirteenth century by an anonymous author. See
Fleta, 73 ENG. HIST. REV. 672 (1958).
179. 1 Rich. III, c. 3 (1483) (Eng.).
180. 2 BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 299 (Cambridge,
Harvard University Press 1968) (1260?). See also THE MIRROR OF JUSTICES EDITED FOR
THE SELDEN SOCIETY BY WILLIAM JOSEPH WHITTAKER 52 (London, Bernard Quaritch
1895) (1290?) (And because it is forbidden that anyone be tormented before judgment
the law wills that no one be placed among vermine or putrefaction, or in any horrible
or dangerous place, or in the water, or in the dark, or any other torment . . . .).
181. See supra note 55.
182. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 300
(London, 11th ed. 1791) (1765-69). See also COKE, supra note 174.
183. DAINES BARRINGTON, OBSERVATIONS ON THE STATUTES CHIEFLY THE MORE AN-
CIENT, FROM MAGNA CHARTA TO THE TWENTY-FIRST OF JAMES THE FIRST 263 (London,
1766).
184. 3 Edw. I, c. 15 (1275) (Eng.).
185. THE JOURNALS OF ALL THE PARLIAMENTS DURING THE REIGN OF QUEEN ELISA-
BETH, BOTH OF THE HOUSE OF LORDS AND HOUSE OF COMMONS 277, 283 (London, 1682)
(Anno Domini 1580 . . . Whereupon after the matter had been a while agitated and
disputed of in the House, it was adjudged, that he ought to remain of the House till he
were Convicted: for it may be any mans case who is guiltless to be accused, and there-
upon indicted of Felony or a like Crime.).
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convincitur reus est
186
declared a member of the House of Commons
in 1621.
187
Frequently mentioned in religious and political pamphlets in the
seventeenth
188
and eighteenth
189
centuries, the maxim innocent un-
til proven guilty served as a caution against hasty judgments
whenever the good name, reputation, and honor of individuals were
at stake. In the House of Commons in 1624, Sir Edwyn Sandys, con-
cerned that the charge of corruption brought against Lord Treasurer
Cranfield would cause him prejudice,
190
reminded everyone of an
ancient Rule, every Man is presumed to be innocent, till he be
proved otherwise
191
and called for a prompt examination of the mat-
ter.
192
Disparaging comments, such as calling individuals
malefactors
193
or prostituted criminals
194
before conviction, or
acquitted felons
195
after exoneration, or arrest warrants written in
186. On the origins of this maxim, see supra note 60.
187. COMMON DEBATES, 1621, at 133 (London, Oxford University Press 1935) (MR.
DENNY: Non qui accusatur sed qui convincitur reus est. He is non condemned. Lett
him comm in, and we may sequester him after he deserve it.). The commitment of
English law to rather spare the guilty than condemn the innocent would be tarnished
by the use of torture. An instrument of state and not of law, torture was mostly used
against prisoners accused of high treason until the seventeenth century. See DAVID
JARDINE, A READING ON THE USE OF TORTURE IN THE CRIMINAL LAW OF ENGLAND PRE-
VIOUSLY TO THE COMMONWEALTH 57 (London, Baldwin & Chadock 1837).
188. See, e.g., WILLIAM BARLOW, AN ANSWER TO A CATHOLIKE ENGLISH-MAN 349
(London, 1609) (The Law presumes every man to be good till hee bee apparantly
naught . . . .).
189. See, e.g., JOHN ALMON, A LETTER TO THE RIGHT HON. GEORGE GRENVILLE 15
(London, 1763) (Have not your advocates, before any kind of proof is made . . . en-
deavoured to bias, and set the public against Mr. Wilkes? Is this fair, in a country,
where, by the laws, every man is supposed to be innocent till convicted? Have they not
prejudged him? condemned him?).
190. HOUSE OF COMMONS JOURNAL VOLUME 1 1547-1629 (1802) (This will fly over
all the Town, and receive divers Constructions . . . .).
191. Id.
192. Id.
193. THOMAS ELLWOOD, AN ANSWER TO GEORGE KEITHS NARRATIVE 13 (London,
1696) (He compares us to Malefactors . . . The Law calls no Man Guilty, until upon
due Trial, he be proved and found Guilty. Till then the Law supposes him Innocent.)
(alteration in original).
194. 2 TRIAL OF WARREN HASTINGS, ESQ. 481 (London, 1794) (Mr. Burke . . . talked
wildly of prostituted Criminals . . . . The Marquis Townshend spoke to order. He said
. . . that to apply such an epithet to a gentleman under trial was contrary to the
principle and the practice of the Law of England, which presumed every man to be
innocent until he was legally pronounced to be guilty.).
195. WILLIAM WOODFALL, AN IMPARTIAL REPORT OF THE DEBATES IN THE TWO
HOUSES OF PARLIAMENT IN THE YEAR 1795, at 326 (London, 1795) (He thought it a
principle of law so well and so generally understoodThat every man is to be deemed
innocent until he is proved to be guilty, that no English gentleman would deny it. If
this was the fact, what was to be said of the case of men whom the law had acquitted?
And yet the House had heard a Hon. Member make use of the phrase an acquitted
felon. What must his feelings be when he heard such a sentence in an English House
of Commons?).
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128 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
a way suggesting conclusive guilt,
196
were viewed as an infringement
of the right to be presumed innocent.
The common portrayal of suspects as dangerous criminals in
public papers caught the attention of the English magistrate and nov-
elist Henry Fielding.
197
Reacting to an announcement published in
The General Advertiser on February 5, 1752,
198
which implied that
Mary Blandy, accused of parricide, had barbarously and inhu-
manly
199
poisoned her father, Fielding denounced a blatant violation
of the presumption of innocence:
That by the Law of England all Persons were presumed in-
nocent, till found guilty by their Country; but that here a
Woman was adjudged guilty of the most enormous of all
Crimes before Conviction. That she was here stigmatized,
and hung up as an Example of the blackest Iniquity to
others, at a Time when her Trial is near approaching. This,
the Court said, was to hang first and try afterwards . . . .
200
Other prejudicial newspaper coverage drew similar criticism. Ex-
amples include the trial at the Old Bailey in 1767 of Elisabeth
Brownrigg for the murder of her fourteen-year-old domestic ser-
vant,
201
the trial at the Old Bailey in 1790 of Renwick Williams,
commonly known as The Monster,
202
for assaulting a young woman
and cutting her clothes,
203
and the trial in the Court of Oyer and Ter-
miner in New York City in 1800 of Levi Weeks for the murder of
Gulielma Sands.
204
196. Money v. Leach, (1765) 97 Eng. Rep. 1075, 1083 (K.B.). Cf. Papon, supra note
80 (citing a decision of the Parlement of Paris dated May 26, 1536 holding that it was
illegal to describe suspects as criminals in arrest warrants).
197. HENRY FIELDING, THE COVENT-GARDEN JOURNAL AND A PLAN OF THE UNIVER-
SAL REGISTER-OFFICE 84 (Bertrand A. Goldgar ed., Clarendon Press 1988) (1752).
198. Id.
199. Id. at 84.
200. Id. at 85. Fielding used a fictional court, the Court of Censorial Enquiry, to
make his point.
201. THE ORDINARY OF NEWGATES ACCOUNT OF THE BEHAVIOUR, CONFESSION AND
DYING WORDS, OF ELISABETH BROWNRIGG 6 (London, 1767) (He therefore who will-
fully does any act to create public prejudice, robs the party accused of the
presumption of innocence . . . .).
202. JAN BONDESON, THE LONDON MONSTER: A SANGUINARY TALE (2001).
203. 1 THE LAWYERS AND MAGISTRATES MAGAZINE. IN WHICH IS INCLUDED AN AC-
COUNT OF EVERY IMPORTANT PROCEEDING IN THE COURTS AT WESTMINSTER 405-06
(Dublin, 1792) (Prisoners Defense . . . . [W]hile I revere the law of my country, which
presumes every man to be innocent till proved guilty, yet I must reprobate the cruelty
with which the Public Prints have abounded, in the most scandalous paragraphs, con-
taining malicious exaggerations of the charges preferred so much to my prejudice,
that I already lie under premature conviction, by an almost universal voice.).
204. A BRIEF NARRATIVE OF THE TRIAL FOR THE BLOODY AND MYSTERIOUS MURDER
OF THE UNFORTUNATE YOUNG WOMAN, IN THE FAMOUS MANHATTAN WELL. TAKEN IN
SHORT BY A GENTLEMAN OF THE BAR 4 (n.p., n.d.) (A thousand rumors of vague and
incongruous nature were circulated by the tongue of public report . . . . forgetful of
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In their instructions to the jury, judges referred to the traditional
function of the presumption of innocence as a shield against punish-
ment.
205
Unnecessary confinements prior to trial were criticized by
judges and sanctioned by juries
206
and the co-mingling of convicted
felons with those who are to be presumed Innocent
207
was con-
demned in 1779 by a House of Commons Committee overseeing
prison conditions.
208
The scandal caused by a decision of the Court of Kings Bench
209
refusing to allow suspects committed to prison before trial from re-
ceiving any food other than bread and water because they refused to
work,
210
prompted the legislature to intervene. Following the same
reasoning that led to the abolition of the practice of forcing pretrial
detainees to wear prison garb,
211
the Gaols Act of 1824 ordered that
pretrial detainees be allowed sufficient food without being obliged to
that golden maxim, that we should deem every man innocent, until, to an impartial
jury of his fellow citizens, his guilt is made manifest.).
205. See, e.g., JOSIAH QUINCY, JR., REPORTS OF CASES ARGUED AND ADJUDGED IN
THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY, BE-
TWEEN 1761 AND 1772, at 111-12 (Boston, 1865) (Charge to the Grand Jury, 1765: I
would have you, Gentlemen, to inquire into the State of our Goal, for it has been
represented and I believe it but too true, that it is a most shocking, loathsome Place.
Our Goal is not intended as a Punishment, it is only to keep Offenders for Trial, or
after Trial till Sentence is fulfilled. Every Man in the Eye of the Law is presumed
innocent till proved guilty.).
206. THOMAS BATTYE, THE RED BASIL BOOK 53-54 (1797) (This cruel practice of
confinement in the New Bailey was justly reprehended by Judge Heath, at the Spring
Assizes at Lancaster, 1795, in the case of a special constable who had confined a per-
son in the New Bailey prison, and the jury, much to their credit, gave ample damages
. . . . he observed, that the laws of the country presumed every man innocent until
pronounced guilty by a jury . . . .) (alteration in original).
207. JOHN M. BEATTIE, CRIME AND THE COURTS IN ENGLAND 1660-1800, at 341
(1986).
208. Id. The separation of convicted and unconvicted prisoners, initiated by the
Gaols Act of 1823, was formally mandated by the Prison Act of 1865. See Prison Act,
1865, 28 & 29 Vict., c. 126, sched. 1 (Eng.) (Prisoners before trial shall be kept apart
from convicted prisoners.) (cited in Unconvicted Prisoners, 41 JUST. OF THE PEACE
641, 642 (1877)).
209. The King v. The Justices of the N. Riding of Yorkshire, (1823) 47 Eng. Rep.
390, 393 (K.B.).
210. 10 PARL. DEB., H.L. (2nd ser.) (1824) 138 ([I]t was loudly called for, to put a
stop to a proceeding unwarranted by the spirit of the law of the land, as it inflicted
punishment before a jury had decided that any guilt existed.). See also State of Crime
in England and France, in 1 THE JURIST, OR Q. J. OF JURIS. AND LEGIS. 469 (1827)
([A]lthough the written language of our law breathes nothing but humanity, and ex-
pressly declares that every man shall be presumed innocent, until he is proved guilty,
the practice of the law is too often directly the reverse . . . . Thus we find a decision of
the Supreme Court of Criminal Justice, subjecting untried prisonerspresumed in-
nocentto the gratifying alternative of hard labour, in the midst of convicted felons,
or the pampering fare of bread and water.).
211. Gaols Act, 1823, 4 Geo. 4, c. 64, 10 (Eng.) ([B]ut no prisoner before trial
shall be compelled to wear a prison dress, unless his or her own clothes be deemed
insufficient or improper, or necessary to be preserved for the purposes of justice; and
no prisoner who has not been convicted of felony shall be liable to be clothed in a
party-coloured dress; but if it deemed expedient to have a prison dress for prisoners
not convicted of felony, the same shall be plain.) (cited in Cruel Treatment of Untried
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130 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
work.
212
Improper treatment of suspects before trial continued, how-
ever. Common citizens wrote letters to newspaper editors
complaining about the poor treatment of pretrial detainees.
213
Law-
yers denounced as unduly oppressive unwholesome jails in which the
health of their clients deteriorated rapidly.
214
By the Prison Act of
1877, the first English statute expressly referring to the presumption
of innocence as a shield against punishment,
215
it was an established
rule that unconvicted prisoners should be treated in accordance with
their status.
216
B. A Rule of Proof
The principle that the burden of proof lies on the accuser and not
on the accused, eloquently stated by Lord Sankey in the Woolmington
case,
217
had long been established in the common law. The earliest
recorded formulation of the presumption of innocence as a rule of
proof by an English (colonial) court is in a decision issued by the Gen-
Prisoners, in THE WORKS OF THE REV. SYDNEY SMITH 201 (New York, D. Appleton and
Company 1860).
212. Gaols Act, 1824, 5. Geo. 4, c. 85, 17 (Eng.) (cited in State of Crime in En-
gland and France, supra note 210).
213. See, e.g., Letter to the Editor, TIMES (London), Dec. 19, 1843, at 3 (Sir . . . it is
a maxim of our law that every one is presumed innocent until he is proved to be
guilty. In practice, however, this principle appears to be reversed, and the accused, it
seems, is presumed to be guilty until he proves his innocence. For how is he treated? I
do not now allude to the custom of styling him murderer, robber, miscreant, and so
on, in many of the public journals, but I wish to speak of the mode of safe-keeping
practiced by the authorities that be . . . . Is not the accused treated as one already
convicted?).
214. See, e.g., Police, TIMES (London), Feb. 12, 1861, at 10 (Mr. Metcalfe com-
plained that his client . . . had been treated in the gaol at Newgate as if he were a
convict . . . and that, at all events, a prisoner, whom the law presumed to be innocent
until he was proved guilty, ought not to be treated as if he were a convict.).
215. Prison Act, 1877, 40 & 41 Vict., c. 21, 39 (Eng.) (Special Rules as to Treat-
ment of Unconvicted Prisoners and certain Other Prisoners. 39. Whereas it is
expedient that a clear difference shall be made between the treatment of persons un-
convicted of crime and in law presumably innocent during the period of their
detention in prison for safe custody only, and the treatment of prisoners who have
been convicted of crime during the period of their detention in prison for the purpose
of punishment . . . .) (cited in Unconvicted Prisoners, supra note 208). See also Pris-
ons (Scotland) Act, 1877, 40 & 41 Vict. c., 53, 45.
216. On the erosion of the rights of pretrial detainees in modern England, see Ste-
phen Jones, The Status of Unconvicted Prisoners, 7 LEGAL ETHICS 144 (2004)
(observing that once incarcerated, the suspect is not only increasingly treated as a
convicted offender, but in many respects suffers even worse conditions.).
217. Woolmington v. The Director of Public Prosecutions, [1935] A.C. 462, 481
(Throughout the web of the English Criminal Law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoners guilt . . . .). Woolm-
ington clarified that the presumption of innocence in homicide cases applies equally to
both the actus reus and the mens rea. The prosecution must prove both the act of
killing and the malice of the accused and no burden is thrown on the accused to prove
that the act was accidental once the killing is established. Id.
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eral Court of the Massachusetts Bay Colony in 1657.
218
Stating that
in the eye of the law every man is honest and innocent, unless it be
proved legally to the contrary,
219
the court held that in both civil and
criminal cases it fell on the court and jury to see that the affirmation
be proved by sufficient evidence, else the case must be found for the
defendant.
220
By the mid-eighteenth century the principle was ex-
pressed in general treatises and encyclopedias on English laws and
customs.
221
In one instance, an English ecclesiastical court relied solely on
the adage to determine the outcome of a civil action, by stating that
until the allegation was proved, a wife accused of bigamy was pre-
sumed innocent and, therefore, entitled to alimony to cover her legal
expenses.
222
But it was in the context of criminal trials that the
maxim flourished. Used mainly as a rhetorical tool by criminal de-
fendants
223
and their lawyers,
224
the maxim served as a reminder to
218. Thayer, supra note 160, at 189. The second instance in which the maxim was
used was in Regina v. Best, a case adjudged in the Court of Queens Bench in 1705. On
the question of whether an indictment for conspiracy to falsely charge someone with
being the father of a bastard child, a spiritual offense, needed to assert that the per-
son charged was not the father, Chief Justice John Holt answered that it was not
necessary as every man is presumed innocent until the contrary appears . . . . (1705)
87 Eng. Rep. 941, 942 (Q.B.).
219. Thayer, supra note 160, at 189.
220. Id.
221. See, e.g., LIBERTY AND PROPERTY: OR, A NEW YEARS GIFT FOR MR. POPE BEING
A CONCISE TREATISE OF ALL THE LAWS, STATUTES AND ORDINANCES, MADE FOR THE
BENEFIT AND PROTECTION OF THE SUBJECTS OF England 84 (London, 1736) (A Man . . .
shall be supposd innocent till found otherwise by his Peers, (on lawful Testimony)
who pass Judgment on his Trial.); AN ACCOUNT OF THE CONSTITUTION AND PRESENT
STATE OF GREAT BRITAIN 104 (London, 1759) (In some cases, the man (who is always
supposed innocent till there is sufficient proof of his guilt) is allowed a copy of his
indictment, in order to help him to make his defence.).
222. Bird v. Bird, (1753) 161 Eng. Rep. 78, 79.
223. See, e.g., THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND
LITERATURE, FOR THE YEAR 1780, at 273 (London, 1781) (Proceedings at the Old Bai-
ley: Mr. Mascal began his defence by observing, that the humanity of the English law
considered every man innocent, until he was convicted . . . .). The earliest recorded
use of the maxim by a criminal defendant appears to be during the trial at the Kings
Bench of Sir Henry Vane for high treason. See THE TRYAL OF SIR HENRY VANE, KT. AT
THE KINGS BENCH, Westminster 68 (1662) (For the Law always presumeth actions to
be innocent, till the contrary be manifestly proved.).
224. See, e.g., THE UNIVERSAL MUSEUM, OR GENTLEMANS & LADIES POLITE MAGA-
ZINE OF HISTORY, POLITICKS AND LITERATURE FOR 1763, at 477 (London, 1763)
(Proceedings at the Quarter Sessions in Manchester: They then hastened to the de-
fence [of John Unsworth], and several points of law were learnedly argued . . . that the
law supposed a person innocent till proved guilty . . . .); ADULTERY. TRIAL, IN THE
COURT OF KINGS BENCH, BEFORE LORD KENYON, AND A SPECIAL JURY BETWEEN ED-
WARD DODWELL, ESQ. PLAINTIFF, AND THE REV. HENRY BATE DUDLEY, DEFENDANT 13
(London, 2d ed. 1789) (DEFENCE. Mr. Mingay, being leading counsel for the Defen-
dant Mr. Bate Dudley, entered upon the defence . . . . for it was leaning to the side of a
favourite presumption, namely, innocence, unless guilt be proved.No indifferent in-
dividual should ever presume guiltjurymen would be scandalous if they did.). In
one occasion the maxim was used by the prosecution at the Old Bailey to rebut the
defense counsels claim that a bank officer was not a competent witness to prove the
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132 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
the jury that suspects could only be convicted upon sufficient
evidence.
Beatties assertion that defense counsel played an important role
in shaping the maxim as a working rule animating the trial
225
is
corroborated by a comparison of English and Scottish criminal
records. Unlike England, where the right to counsel in criminal mat-
ters was long restricted,
226
Scotland, a mixed legal system based on
civil law and common law principles,
227
allowed all criminal defend-
ants to be represented by counsel by the Act of 1587.
228
It is,
therefore, not surprising to find Scottish advocates using the maxim
in defense of persons accused of felony as early as 1705
229
whereas a
similar usage in English courts appeared in the late eighteenth cen-
tury,
230
a period during which individuals accused of felony in
England were increasingly permitted counsel.
231
Sir George Macken-
zie, an eminent seventeenth-century Scottish lawyer and legal
writer, included the right to be presumed innocent as part of the laws
and customs of Scotland.
232
By the end of the eighteenth century,
Scottish students were taught that the presumption of innocence was
one of the maxims of natural law relating to prosecutions.
233
forging of a bank note bearing his signature on the ground that he had a personal
interest in swearing that it was a forgery to avoid prosecution for fraud. See Rex v.
Newland, 168 E.R. 258, 259 (1784).
225. Beattie, supra note 164, at 249.
226. Id. at 221 (Until the eighteenth century lawyers played little part in the trial
of felonies in England . . . .). See also John H. Langbein, The Criminal Trial Before
the Lawyers, 45 U. CHI. L. REV. 287 (1978).
227. Christopher Gane, Civilian and English Influences on Scots Criminal Law, in
A MIXED LEGAL SYSTEM IN TRANSITION: T. B. SMITH AND THE PROGRESS OF SCOTS LAW
218 (2005).
228. See Michael Wasser, Defence Counsel in Early Modern Scotland: A Study
Based on the High Court of Justiciary, 26 J. Legal Hist. 183, 186 (2005). Another
interesting feature of this statute was the provision prohibiting that the accused be
prejudged before conviction. See 2 JAMES WATSON, A PRACTICAL VIEW OF THE STATUTE
LAW OF SCOTLAND 34 (Edinburgh, Printed for Bell & Bradfute 1828) (that the sute of
the accuser be not tane pro confesso, and the partie accused, prejudged in ony sorte,
before he be convicted be lauchfull tryall . . . .).
229. THE TRYAL OF CAPT. THOMAS GREEN AND HIS CREW, BEFORE THE JUDGE OF THE
HIGH COURT OF ADMIRALTY OF SCOTLAND 25, 26 (Edinburgh, 1705) (For in all crimi-
nal Prosecutions, the Accused are not to prove their Defences . . . . [I]f they be guilty,
it ought to be found so, for till that be, they are presumed Innocent . . . .).
230. See supra note 226. See also Old Bailey Proceedings, Michael Druitt, Dec. 14,
1785, available at http://www.oldbaileyonline.org (In the present case, you are not to
convict a man because he cannot prove his innocence, but you must first give reasona-
ble evidence of his guilt . . . .).
231. Beattie, supra note 164. See also John H. Langbein, The Historical Origins of
the Privilege Against Self-Incrimination at Common Law, 92 MICH. L. REV. 1047,
1048 (1994).
232. SIR GEORGE MACKENZIE, THE LAWS AND CUSTOMES OF SCOTLAND IN MATTERS
CRIMINAL. WHEREIN IS TO BE SEEN HOW THE CIVIL LAW, AND THE LAWS AND CUSTOMS
OF OTHER NATIONS DO AGREE WITH, AND SUPPLY OURS 476 (Edinburgh, 1678).
233. ADAM FERGUSON, INSTITUTES OF MORAL PHILOSOPHY. FOR THE USE OF STU-
DENTS IN THE COLLEGE OF EDINBURGH 264 (Edinburgh, 2d ed. 1773).
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It is true, though, that in some instances, the English legislature
required suspects to prove their innocence,
234
particularly in cases
where establishing the commission of a crime was difficult for the
prosecution.
235
Individuals caught in possession of allegedly stolen
goods who failed to explain how they acquired them could be con-
victed summarily of a misdemeanor. Such were exceptions, however,
to the general rule.
236
Termed a great principle of social security
237
by Alexander
Hamilton, the maxim has been used, as a principle governing the
burden of proof, in American courts by defense lawyers and judges
instructing juries in the years following the American Revolution
238
to the present day.
239
IV. DECLINE AND RENEWAL
Two centuries were necessary for France to give full meaning to
the fundamental principle of justice announced in Article 9 of the
French Declaration of Rights. From the Law of Suspects
240
to the
Dreyfus case
241
to the press regularly portraying defendants as
criminals, the ambivalence that France displayed towards the pre-
sumption of innocence was regularly denounced by foreign
observers.
242
The recent reforms that France implemented to
strengthen the presumption of innocence, including elevating the
doctrine to a personality right,
243
are in marked contrast with the
234. See Bruce P. Smith, The Presumption of Guilt and the English Law of Theft,
1750-1850, 23 LAW & HIST. REV. 133 (2005).
235. Id. at 154.
236. Id. at 155. On the earlier history, see Richard W. Ireland, The Presumption of
Guilt in the History of English Criminal Procedure, 7 J. Legal Hist. 243, 250 (1986)
(Notable also is the evidence of the Statute of Wales 1284 c. 14 which states In theft
if one is taken with the mainour he shall not be admitted to purgation but shall be
holden for convict. ). See also 2 BRACTON, supra note 180, at 404. Cf. Cl ement Charles
Fran cois de Laverdy, Code p enal, ou recueil des principales ordonnances, edits et d ec-
larations, sur les crimes et d elits 170 (PARIS, 1755) (citing a Declaration of King Louis
XIV of Mar. 23, 1688 stating that anyone caught in the countryside carrying salt will
be punished as salt-smuggler, notwithstanding any declarations that the salt was
purchased for personal use).
237. SELECTED WRITINGS AND SPEECHES OF ALEXANDER HAMILTON 77 (Morton J.
Frisch ed., 1985).
238. See, e.g., State v. Lewis, 1 S.C.L. 1 (1783); Pendleton v. Lomax, Wythe 4 (Va.
High. Ch. 1790); State v. Wilson, 1 N.J.L. 439 (1793); State v. Hopkins, 1 S.C.L. 372
(1794).
239. See, e.g., Steichen v. Weber, 760 N.W.2d 381, 392 (S.D. 2009).
240. See Bernard, infra note 249.
241. See infra note 252.
242. See, e.g., Unconvicted Prisoners Under the French Republic, THE SCOTSMAN,
Apr. 4, 1892, at 8; French Justice, TIMES (London), Feb. 5, 1955, at 7; Innocence De-
nied, THE ECONOMIST, May 15, 1999, at 56.
243. Personality rights are rights inherent to the person, such as the rights to pri-
vacy, dignity, reputation, image and integrity. See, e.g., EUROPEAN AND US
CONSTITUTIONALISM 41 (Georg Nolte ed., 2005).
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134 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
narrow view of the presumption of innocence as a rule of proof in
modern Anglo-American jurisprudence.
A. The French Ambivalence
The ideals embodied in the French Declaration of Rights would
be short-lived in the aftermath of the Revolution. Attending the trial
of King Louis XVI in Paris in 1792, the Englishman James Fennell
observed that by all natural and civil laws, those of France excepted,
a man is presumed innocent till he be proved guilty.
244
Portrayed as
a tyrant in revolutionary pamphlets,
245
Louis was convicted before
being judged. According to Robespierre, giving Louis the benefit of
the presumption of innocence would have undermined the legitimacy
of the Revolution itself: But if Louis can be presumed innocent, what
becomes of the Revolution?
246
The years immediately following the French Revolution abol-
ished the distinction between accused and convict. A High
National Court was instituted in Orleans to try all persons suspected
of being a counter-revolutionary.
247
The manner in which the court
treated the accused was severely criticized across the Atlantic:
The high national court is now met to judge Mr. Varnier
. . . . The Constituent Assembly, aping the English, decreed,
that every man was presumed innocent, until his guilt was
pronounced; still M. Varnier has been, and continues to be,
severely punished, though his judges have not, as yet, taken
cognizance of his case . . . . Such is the obedience paid to the
Laws on this side of the water.
248
The Law of Suspects of September 17, 1793 authorized the de-
tention of anyone who by their conduct, associations, comments or
writings acted as enemies of liberty
249
or who were unable to justify
their means of existence or the performance of their civic duties.
250
For those against whom there was no ground for indictment or who
244. JAMES FENNELL, A REVIEW OF THE PROCEEDINGS AT PARIS DURING THE LAST
SUMMER 398 (London, 1792).
245. See, e.g., Journal de la R epublique Fran caise, par Marat, lAmi du Peuple,
Deput e ` a la Convention Nationale. Du vendredi 28 D ecembre 1792.
246. DAVID P. JORDAN, THE KINGS TRIAL: THE FRENCH REVOLUTION VS. LOUIS XVI,
at 74 (2004).
247. THE REVOLUTIONARY PLUTARCH: EXHIBITING THE MOST DISTINGUISHED CHAR-
ACTERS, LITERARY, MILITARY, AND POLITICAL, IN THE RECENT ANNALS OF THE FRENCH
REPUBLIC. THE GREATER PART FROM THE ORIGINAL INFORMATION OF A GENTLEMAN RES-
IDENT IN PARIS 176 (London, John Murray 1806).
248. Paris, December 5, DUNLAPS AMERICAN DAILY ADVERTISER, Mar. 16, 1792.
249. Guillaume Bernard, Les crit` eres de la pr esomption dinnocence au XVIIIe si` e-
cle: de lobjectivit e des preuves ` a la subjectivit e du juge, in La pr esomption dinnocence:
Essais de philosophie p enale et de criminologie 55 (2004).
250. Id.
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had been acquitted of the charges brought against them, the law al-
lowed their indefinite detention as suspected persons.
251
The Dreyfus case, in which Alfred Dreyfus, a Jewish captain in
the French army, was falsely accused of high treason, crystallized in
the common law world the widely shared belief that suspects in
France were presumed guilty. The reporter covering the trial for The
Times reminded his readers how fortunate they were to live in
England.
252
H. Cleveland Coxe, the assistant deputy consul general in the
American Consulate in Paris, observed that the presumption of inno-
cence was admitted in theory in the French Declaration of Rights, but
that in practice innocence was not presumed.
253
Not all foreign ob-
servers lamented the condition of the accused, however, with some
openly praising Frances tough stance on crime.
254
Essays commemorating the centenary of the French Revolution
deplored the lack of improvement in the condition of the accused.
255
Many features of post-revolutionary French criminal procedure
echoed those of the Old Regime: confessions under pressure, pro-
longed detention of suspects before trial, absence of defense counsel
the drive for a conviction took precedence over the protection of the
accused.
256
If the rule that the burden of proof falls on the prosecu-
tion was admitted in theory,
257
the pressure exerted on the accused
to cooperate in the pursuit of the truth negated it.
258
251. Id. In a case where an individual was accused of stealing a tobacco box, the
tribunal found no evidence of theft, but nevertheless ordered the detention of the ac-
cused. See Gazette des Tribunaux et M emorial des Corps Administratifs et
Municipaux 343 (Paris, Vol. 11, 1795) (citing a decision of Dec. 1794).
252. The Dreyfus Case. New Trial Ordered, TIMES (London), June 5, 1899, at 7 (I
am writing in the paper of a countryand this may be noted with pridein which the
word accused is not synonymous with condemned, but where, on the contrary, every
accused man is presumed innocent.). See also The Territorial Expansion of the Com-
mon Law Ideal, 4 MICH. L. REV. 1, 8 (1905) (It is in France that a Dreyfus is
compelled to prove his innocence of the accusation made. It is the Anglo-Saxon Com-
mon Law alone which holds that the prisoner is an innocent man unless and until he
is proven guilty beyond a reasonable doubt.).
253. H. Cleveland Coxe, Personal Liberty in France, 13 YALE L.J. 215, 218 (1904).
254. See, e.g., PARISIAN SIGHTS AND FRENCH PRINCIPLES SEEN THROUGH AMERICAN
SPECTACLES 139 (New York, 1852) (However salutary such a purgative might be in a
city like New York, our institutions require that a citizen must be considered innocent
until adjudged guilty by a jury of his countrymen. Consequently, we are compelled to
await crime before we act. The French seek to prevent it, by placing society as much
as possible out of the risk. We punish; they protect.).
255. See, e.g., Blum, supra note 156, at 222.
256. French Justice, supra note 242.
257. Morris Ploscowe, The Development of Present-Day Criminal Procedures in Eu-
rope and America, 48 HARV. L. REV. 433, 436 (1934-35) (If the presumption of
innocence means that the burden of proof is upon the prosecution to prove its case,
that the defendant does not have to exculpate himself, and is favored by a reasonable
doubt, the presumption of innocence is as fundamental in Continental procedure as in
England and America.).
258. Bron McKillop, Anatomy of a French Murder Case, 45 AM. J. COMP. L. 527,
583 (1997).
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136 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
The right to bail pending trial, permitted for most offenses by the
Constitution of 1791,
259
was significantly restricted by the Code of
Criminal Procedure of 1808, which established a system of preventive
detention for all crimes except minor offenses.
260
The figure which
became the symbol of French inquisitorial justice was the all-power-
ful juge dinstruction, a magistrate in charge of investigating crimes
whose prerogatives, deemed exorbitant,
261
made him the most
powerful man in France.
262
Slow progress was made towards the protection of the accused
during the nineteenth and twentieth centuries.
263
A law of 1897 al-
lowed the accused to have counsel present during the investigation by
the juge dinstruction.
264
If suspects had the right to remain silent,
265
their refusal to furnish an explanation often resulted in pretrial de-
tention.
266
Denounced as arbitrary and oppressive,
267
pretrial
detention was intended to be an exception under the new Code of
Criminal Procedure of 1958.
268
The long detention of suspects before
trial remained the rule, however.
269
The change in terminology
adopted in 1970provisional detention in lieu of preventive deten-
tion
270
was merely symbolic. Suspects in police custody could be
interrogated for up to forty-eight hours without the assistance of
counsel.
271
Although not expressly mentioned in the Code of Criminal Proce-
dure, the constitutional
272
principle innocent until proven guilty
259. W. Laurence Craig & William A. Dobrovir, The French Experience with Pre-
ventive Detention, 57 A.B.A. J. 565, 566 (1971).
260. Id.
261. The Juge dInstruction. From the Nineteenth Century, N.Y. TIMES, Apr. 15,
1899.
262. Craig & Dobrovir, supra note 259, at 566.
263. Ploscowe, supra note 257, at 462.
264. Robert Vouin, The Protection of the Accused in French Criminal Procedure, 5
INTL & COMP. L.Q. 1, 16 (1956).
265. Manfred Pieck, The Accuseds Privilege Against Self-Incrimination in the Civil
Law, 11 AM. J. COMP. L. 585 (1962).
266. Id.
267. See, e.g., Maurice Gar con, D efense de la libert e individuelle (1957).
268. A. E. Anton, LInstruction Criminelle, 9 AM. J. COMP. L. 441, 448 (1960).
269. Id. at 453.
270. Craig & Dobrovir, supra note 259, at 569.
271. Ren e L evy, Police and the Judiciary in France Since the Nineteenth Century:
The Decline of the Examining Magistrate, 33 BRIT. J. CRIMINOLOGY 167, 176 (1993)
(observing that the police were deeply convinced that a case which remains un-
resolved during the police phasethat is, the 24-48 hours when the police can act
without restriction and without the suspect having recourse to a lawyerwill never
be solved, and especially not by an examining magistrate.).
272. The Conseil constitutionnel affirmed the constitutional value of the presump-
tion of innocence in 1981. See CC decision no. 80-127DC, Jan. 20, 1981, Journal
Officiel de la R epublique Fran caise [J.O.] [Official Gazette of France], Jan. 22, 1981,
p. 308. See also CC decision no. 89-258DC, July 8, 1989, J.O., July 11, 1989, p. 8734;
CC decision no. 93-326DC, Aug. 11, 1993, J.O., Aug. 15, 1993, p. 11599; CC decision
no. 2009-580DC, June 10, 2009, J.O., June 13, 2009, p. 9675.
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2010] PRESUMPTION OF INNOCENCE 137
was regularly used by French courts to condemn abusive police prac-
tices
273
or to remind the prosecution that it bore the burden of
proof.
274
In 1988, the Department of Justice instructed a commission
presided over by Mireille Delmas-Marty, then a professor of law at
the University of Paris XI, to submit proposals for reforming French
criminal procedure.
275
Reaffirming the dual dimension of the pre-
sumption of innocencerule of proof and shield against
punishment
276
the commission indicated that pretrial detention
should remain the exception and that measures should be taken to
avoid confessions under pressureincluding the notification of sus-
pects of their right to remain silent.
277
The indictment for corruption
of a former treasurer of the Socialist Party prompted the Socialist
legislature to implement reforms in 1993.
278
For the first time, sus-
pects in police custody were allowed counsel, but only for thirty
minutes and after twenty hours of detention.
279
The obligation for the
police to notify suspects of their right to remain silent was not codi-
fied, but the right not to be handcuffed upon arrest or transfer was
established.
280
An important reform was the insertion of a provision
in the French Civil Code
281
elevating the presumption of innocence to
273. See Essaid, supra note 140, at 59 (citing a decision of the Bourges Court of
Appeal dated Mar. 9, 1950).
274. Id. at 60 (citing a decision of the Tribunal correctionnel de la Seine dated Sept.
30, 1957). See also Tonglet, supra note 73, at 24 (citing decisions of the Cour de cassa-
tion dated Mar. 22, 1966, May 29, 1980, Mar. 19, 1986, and Feb. 22, 1993).
275. La mise en etat des affaires p enales: Rapport de la Commission Justice et
Droits de lhomme 2 (1991) [hereinafter Rapport Delmas-Marty]. The commission was
established to examine the compatibility of French criminal procedure with the Euro-
pean Convention on Human Rights. See Jacqueline Hodgson, Suspects, Defendants
and Victims in the French Criminal Process: The Context of Recent Reform, 51
I.C.L.Q. 781, 786 n.29 (2002).
276. Rapport Delmas-Marty, supra note 275.
277. Id.
278. See Inciyan Erich, Les d eclarations du chef de lEtat ` a loccasion des f etes du
14 juillet. Proc edure p enale: relancer la r eforme, LE MONDE, July 16, 1992.
279. Hodgson, supra note 275, at 800.
280. C. PR. P
EN. art. 803 (No one may be forced to wear handcuffs or shackles
unless she is considered to be a danger to others or to herself, or is likely to attempt to
escape.). Cf. The Bobbies of London Town, N.Y. TIMES, Sept. 9, 1923, at 5 (noting that
the Duty Book issued to all constables and section sergeants in London warned
them that all unconvicted persons are assumed to be innocent: A constable must not
handcuff an unconvicted prisoner except in case of actual necessity, and in any case
care must be taken not to expose a person to avoidable degradation. ); Zeno, To the
Sheriffs of London, TIMES (London), Jan. 13, 1785, at 1 (denouncing the chaining of
presumably innocent suspects before conviction); Code Just. 9.3.2 (Gratian, Valen-
tinian & Theodose 380) (Nullus in carcerem prius quam convincatur, omnino
vinciatur . . . .). For a similar right during trial, see C. PR. P
EN. art. 81. For a similar obligation under the Criminal Ordinance of
1670, see supra note 75.
296. A person mis en examen is a person against whom there is strong and concor-
dant evidence that she may have participated in the commission of the alleged crime.
See C. PR. P
EN. art. 80-1. Following the Outreau affair, where seventeen persons were
falsely accused of belonging to a pedophilia ring and one died in prison in unclear
circumstances, the decision to place a suspect under formal investigation will be
taken by a college of three juges dinstruction. See Law No. 2007-291 of Mar. 5, 2007,
J.O., Mar. 6, 2007, p. 4206.
297. C. PR. P