Abstract
The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed, historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due process, as developed throughout English and US. Colonial history leading up to the formation of the US. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.
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Notes
Eminent scholars ascribe to different views of how and why various procedural due process protections came to be. For example, Chapman and McConnell (2012) argue that due process protections were originally intended to constrain legislative power and ensure separation of powers; Whitman (2008) argues that the reasonable doubt standard has religious origins; still others, such as Weinstein (2004), argue that due process limitations on state court authority derive from federal common law. This Article does not presume to engage in such a debate, and the need for brevity would not permit her to do so were she so inclined. Rather, this Article is intended merely to offer a novel and normative contribution to the body of work set forth thus far.
Hyman and Tarrant (1975) note historical accounts from the Virginia colony in which “a few individuals were put to death without jury trials,” in which “felony trials were held in 1 day” and the jury “locked up without food or water until it reached a verdict,” and in which a county sheriff deliberately “packed” the jury with poor individuals in an attempt to reach a certain outcome in a case.
Although there is some disagreement as to broadly or narrowly Coke’s vision of due process should be construed (Taylor 1911), dispute is of little relevance in this historical evaluation since Lord Coke’s interpretation was, in fact, highly influential in American due process jurisprudence.
For example, in 1,350, one such statute dictated that “none shall be taken… unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done in due manner or by process made by writ original or at the common law” (Holdsworth).
“[N]o person, in this Colonie, shall be taken or imprisoned, or be disseized of his Lands or Liberties, or be Exiled, or any other otherwise molested or destroyed, but by the Lawfull judgment of his Peeres.”
“[N]o… Inhabitant… shall be deprived or condemned of Life, Limb, Liberty, Estate, Property or any ways hurt in his or their Privileges, Freedoms or Franchises, upon any account whatsoever, without a due Tryal, and Judgment passed by Twelve good and lawful Men of his Neighbourhood first had.”
“[N]o Free-man shall be taken or imprisoned, or be deprived of his Free-hold or Liberty, or free Customs, or Out- Lawed, or Exiled, or any other ways destroyed; nor shall be passed upon, adjudged or condemned, but by the lawful Judgment of his Peers, and by the Laws of this Province.”
“Noe Freeman to be Imprisoned, or be Disseized, Outlaw’d or Exiled, or otherwise hurt, Tried, or Condemned, but by the Judgment of his Twelve Equalls, or Laws of this Province.”
“That in all capital and criminal prosecutions… that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.”
“[N]or can any man be justly deprived of his Liberty, except by the Laws of the Land, or the Judgment of his peers.”
“[T]he trial by jury as heretofore used in this state… shall be forever inviolably preserved.”
“And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers or law of the land.”
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Baradaran, S. The Presumption of Punishment. Criminal Law, Philosophy 8, 391–406 (2014). https://doi.org/10.1007/s11572-013-9236-7
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DOI: https://doi.org/10.1007/s11572-013-9236-7