Guest Essayist: Ben Peterson
Scales of justice in association with Lady Justice and the presentation of evidence to be carefully weighed.


Essay Read By Constituting America Founder, Actress Janine Turner


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?” Coffin v. United States (1894), citing Rerum Gestarum, L. XVIII, c. 1

I served on a jury for an assault and family violence case last year. The defense counsel reminded me and the other potential jurors that the prosecution bore the burden of demonstrating the defendant’s guilt. Even if the defense presented no evidence, called no witnesses, or gave no testimony, jurors were not to take absence of exculpatory evidence as an indication of guilt. It was the prosecutor’s task to prove, beyond a reasonable doubt, that the defendant was guilty.

Neither the phrase “innocent until proven guilty,” nor “presumption of innocence” appears in the United States Constitution. Yet, the presumption of innocence is a fundamental principle of our legal order. Colonial governments and the First Continental Congress invoked the principle, it lies in the background of protections for the accused and requirements of due process in the Fourth and Fifth Amendments, and it appears in the constitutions or penal codes of some states.

Supreme Court justices have referred to the presumption of innocence as a fundamental, axiomatic legal principle. Associate Justice Joseph Story (d. 1845), offering the opinion of the Supreme Court in United States v. Gooding (1827), wrote that, “the general rule of our jurisprudence is that the party accused needs not establish his innocence, but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Associate Justice Edward Douglass White (d. 1921), writing for the Court in Coffin v. United States (1894), wrote, “The 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.” The Court found that the lower court should have instructed the jury that,

The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.

The doctrine of presumed innocence has medieval roots, and there are ancient principles regarding fair procedure that are widely shared, finding echoes in Talmudic and Islamic legal theory, and even in the Code of Hammurabi, as well as Roman law. While Justice White and other writers traced the principle to the English common law, in great measure incorporated into the American legal order, Kenneth Pennington credits a French canon lawyer who lived in the thirteenth and first part of the fourteenth century, Johannus Monachus (d. 1313), with the first clear, pithy formulation of the principle that a person is presumed innocent until proven guilty: “item quilbet presumitur innocens nisi probetur nocens.”

The canonist was himself referring to a decretal by Pope Innocent III (d. 1216), and he was among a number of jurists who, in the thirteenth century, sought to ground procedural rights of defendants charged with criminal acts in the divine law and biblical teaching. After all, even God, the supreme judge, did not expel Adam and Eve from the Garden of Eden before they had a chance to appear and plead their case. These canonists drew on and contributed to the Ius commune, the common law of the civil law systems of Europe, based on the Corpus juris civilis of Justinian, moving European legal systems away from trial by ordeal or even torture such as employed in some inquisitorial proceedings to induce confessions.

As Pennington notes, there were jurists who argued, contrary to the presumption of innocence, that public order often requires limiting the rights of the accused to ensure conviction of the guilty. The Ius commune, and subsequently judges and jurists contributing to the English common law, instead adopted the principle reflected in William Blackstone’s (d. 1780) famous ratio: “The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Blackstone was an authority on jurisprudence at the time of the American founding and early republic, and in his ratio he was distilling a notion that other common law jurists such as Sir John Fortescue and Sir Matthew Hale had also expressed.

Pennington’s point that the English common law isn’t the primary source of the presumption of innocence notwithstanding, we find an assertion of the importance of due process of law, the idea that government must demonstrate guilt via a legal process established in advance before depriving a citizen of life, liberty, or property, in the Magna Charta (1215): “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The presumption of innocence, a legal principle with deep and broad roots in ancient, medieval, and modern tradition and experience, is a central part of the constitutional and legal order in the United States. I’ve seen the principle in action; my fellow jurors and I voted to acquit the defendant because we didn’t believe the prosecution demonstrated guilt beyond a reasonable doubt. No doubt there are many others—some innocent, some guilty—who are today not incarcerated or tagged with criminal records because of the presumption of innocence. Such is the fruit of this foundational principle of legal administration, a bulwark of constitutional liberty where it is honored.

Ben Peterson is an assistant professor of political science at Abilene Christian University.



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