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THE PRESUMPTION OF INNOCENCE: MATERIAL OR PROBATORY?

Published online by Cambridge University Press:  16 December 2005

Larry Laudan
Larry Laudan
Affiliation:
Autonomous National University of Mexico
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Abstract

In all cases of penal procedure, the declared supposition is, that the party accused is innocent; and for this supposition, mighty is the laud bestowed upon one another by judges and law-writers. This supposition is at once contrary to fact, and belied by their own practice…. The defendant is not in fact treated as if he were innocent, and it would be absurd to deal by him as if he were. The state he is in is a dubious one, betwixt non-delinquency and delinquency: supposing him non-delinquent, the[n] immediately should that procedure against him drop; everything that follows is oppression and injustice.

—Jeremy BenthamJEREMY BENTHAM, PRINCIPLES OF JUDICIAL PROCEDURE 169 (1829).

If the presumption of innocence is not sacred in our system then what is to become of us?

—Judge Reta Strubhar (Oklahoma Court of Criminal Appeals)Flores v. Oklahoma, 1995 OK CR 31 (Okla. Crim. App. 1995).

Type
ARTICLES
Information
Legal Theory , Volume 11 , Issue 4 , December 2005 , pp. 333 - 361
Copyright
© 2005 Cambridge University Press

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Footnotes

I am grateful to Ron Allen for his encouragement in bringing this paper to fruition and for his critical comments once it had been. A version of this paper was discussed at the Tenth Annual Conference on Analytic Philosophy of Law.