Center for Law and Philosophy
Center on Global Governance
The presumption of innocence is a curious item in the baggage of Western legal rhetoric. Revered today here and abroad, it has become a standard clause in international testimonials to the rights of man. Yet, at first blush, it seems conceptually anomalous and irrelevant in practice. It is hardly a presumption of fact – a distillation of common experience; statistics betray the suggestion that men indicted on criminal charges are likely to be innocent. Nor is it a legal rule masquerading as an irrebuttable presumption; it is rebuttable by proof beyond a reasonable doubt of the defendant's guilt. Further, it is hard to see what the presumption of innocence adds to the rules already applied by Western courts. Both common law and civilian courts apply rules requiring the trier-of-fact to acquit in cases of doubt on the material facts. And these rules on the prosecutor's burden of persuasion are neither logically nor historically derivative of a presumption of innocence.
George P. Fletcher,
The Presumption of Innocence in the Soviet Union,
UCLA L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1025