Innocent Until Proven Guilty
Most of our generation lacks historical perspective on justice and persecution, so we’ve put together a brief paper on how these ideas have evolved in the context of Western Civilization.
“The law requires a double testimony to convict…the principal reason undoubtedly is to secure the subject from being sacrificed to fictitious conspiracies…”[1]
– William Blackstone, 1769
The cornerstone of Western criminal law is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. The presumption of innocence (PoI) is justly regarded as “axiomatic and elementary,” a triumph of rationalism over arbitrary persecution.[2] Like all due process protections, the PoI took shape against the specter of tyrannical violence. In particular, history suggests that the PoI emerged as an antidote to the tyranny of mob violence against marginalized figures including “heretics, witches, and Jews” — and sometimes even kings themselves.[3]
Few have analyzed persecution as deeply as René Girard. Girard argues that communities routinely commit acts of insensate violence against innocent individuals. These victims of collective aggression are “scapegoats” — symbolically equivalent to the he-goats that the ancient Hebrews would slaughter to atone for their sins.[4] For Girard, social groups are driven by an intrinsic logic of “mimesis” — mimicry of other people’s desires. Because human beings absorb our values from others, we are prone to bandwagoning, herd instincts, the madness of crowds, and sometimes a “blind instinct for reprisals.” [5] This trait occasionally drives us to demonize others as monstrous scapegoats that must be ritually slain to restore peace to the community.[6]
Girard argues that Christ’s crucifixion permanently exposed the scapegoat’s “guilt” as a lie, inaugurating progress towards more rational criminal justice. Christ is perfectly innocent. Pilate can find no case against the “Lamb of God”, who cries out from the cross “Father forgive them, for they know not what they do” (John 1:29, Luke 23:24). This most famous miscarriage of justice reveals the entire practice of scapegoating to be morally bankrupt and forces humanity to reason about guilt prior to punishment. In this way, the synoptic gospels give birth to the rational criminal trial, due process, and, by extension, the presumption of innocence. In Girard’s phrase, “the invention of science is not the reason that there are no longer witch-hunts, but the fact that there are no longer witch-hunts is the reason that science has been invented.”[7]
As a matter of historical fact, variants on the PoI surfaced in the West well before the death of Christ. The principle that the burden of proof is on the plaintiff dates back to the Twelve Tables, and in Roman law the defendant’s guilt had to be as “clear as daylight” in order for the judge to convict.[8],[9] Well before Judeo-Christian thinking penetrated Rome, Emperor Trajan said “it is preferable that the crime of a guilty man should go unpunished than that an innocent man be condemned”. Furthermore, Judaism itself endorsed the principle that “at the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death” (Deuteronomy 17:6).[10]
It is nearer the truth to say that both church and state helped cement principles of due process in the West. After all, the Roman world had the most robust legal system of any classical civilization. But Girard may be right that Christianity helped to “rationalize” the Abrahamic tradition. It was the fusion of the two traditions — Roman law and Canon law — that ultimately produced modern due process protections. 1215 was a watershed year for criminal justice: in a span of months, the Magna Carta codified the rights of a free man to the “lawful judgment of his equals or by the law of the land,” and the Fourth Lateran Council overturned pre-rational modes of trial (combat, ordeal). In trial by ordeal, for instance, defendants burned themselves with molten iron, boiling water, or glowing coals, and then clerics assessed their guilt based on the pace at which their wounds healed.[11]. Under growing pressure from Scholastic thinkers, Pope Innocent III decreed that appeal to heavenly signs (combat, ordeal) was not adequate to determine guilt. Instead, guilt had to be assessed by using human reason to grapple with the facts of a case to the best of our ability.
Unfortunately, legal progress marches to the unsteady canto of two steps forward, one step back. While Pope Innocent’s reforms were a dramatic advance in Western criminal justice, atavisms persisted into the modern world. Inquisitorial trials were “generally permeated by a presumption of guilt in the guise of mala fama, a doctrine which allowed a person to be brought to trial if they were collectively presumed to be guilty.[12] In addition, torture was used as a mode of fact-finding and an unimpeachable form of proof as late as the 18th century. As a result, the medieval criminal trial was often little more than a formalized scapegoating ritual.
Eventually the Western world clawed its way to a moral high-ground, immortalizing the presumption of innocence as a central pillar of due process. Blackstone famously expanded Trajan’s principle to “it is better that ten guilty persons escape than that one innocent suffer.” The “beyond reasonable doubt” standard found first expression in the trials of redcoats after the Boston Massacre, and the phrase “presumption of innocence” first appeared in an American court opinion in 1850. Of course, it took many years for our country to extend the principle fairly and evenly to all men and women, black and white. In the middle of the 19th century, Frederick Douglass caustically noted that slave owners espoused a hideous variant of Blackstone’s principle.
“Mr. Gore acted fully up to the maxim laid down by slaveholders, — “It is better that a dozen slaves should suffer under the lash, than that the overseer should be convicted, in the presence of the slaves, of having been at fault.” No matter how innocent a slave might be — it availed him nothing, when accused by Mr. Gore of any misdemeanor. To be accused was to be convicted, and to be convicted was to be punished; the one always following the other with immutable certainty.”
But over the course of the 20th century, due process protections were gradually extended to all Americans. In 1970 the Supreme court elevated the “beyond a reasonable doubt principle” to the status of constitutional law.[13],[14] As the concept of the plaintiff’s evidentiary burden evolved from “clear as daylight” to “moral certainty” to “beyond a reasonable doubt”, courts continued to refine the ideas of “rationality” and “reasonability” which guide the criminal trial. Borrowing an idea from Hegel, one might say that the spirit of Western rationalism animating criminal law has become increasingly self-conscious.
Whether Girard is right about the causal link between the synoptic gospels and Western rationalism, he is certainly right that we are always in danger of relapse. Our highest court once ruled that unless the right to bail before trial was preserved, “the presumption of innocence secured only after centuries of struggle would lose its meaning.”[15] The Rehnquist court destroyed this protection in Bell v. Wolfish (1979), ruling that pre-trial detention of presumptively innocent parties is permissible. The extension of this precedent has eroded the rights of those accused of sexual crimes and justified “civil asset forfeiture,” or the blatant seizure of an innocent person’s property.[16]
James Thayer once argued that the PoI has the “peculiarly important function…of warning our untrained tribunal, the jury, against being misled by suspicion, conjecture, and mere appearances.”[17] Today, social media and search algorithms corral us into the kinds of ideological pens that make suspicion and knee-jerk reactions to “mere appearances” more probable. In 2017 we made real progress in resisting the predations of the powerful — inspiring people to stand up for themselves, and making it clear that certain behavior is unacceptable in our society. As we move into the new year, we would do well to remember our civilization’s foundational wisdom and find new ways to support the downtrodden. As we continue important conversations about justice and our identity as a people, we should ensure that we do not cast stones in new cycles of public scapegoating. As Girard reminds us, a core element of our Judeo-Christian heritage — and the crucifixion story itself — is the belief that no one should face persecution at the hands of a mob, and that the presumption of innocence is the soul of rational criminal justice.
[1] Blackstone, William. “Blackstone’s Commentaries” Abridged version, ed. William Sprague, 9th edition, 1915. p. 523
[2] Coffin v. U.S. Justice White’s majority opinion. 156 U.S. 432, 1895.
[3] Pennington, Kenneth. “Innocent Until Proven Guilty: The Origins of a Legal Maxim.” The Jurist, 2003.
[4] Leviticus 16:30
[5] Girard, 86.
[6] Girard’s theory of mimesis is that individuals competitively imitate each other until they become so similar that they are driven into a cycle of escalating violence which terminates in the cathartic, sacred murder of a “scapegoat.”
[7] Girard, ibid. p.96
[8] Mousourakis, George. “The Historical and Institutional Context of Roman Law.” Routledge, 2003.
[9] Cicero. “Against Verres” in Selected Works, Trans. Michael Grant. Penguin Classics, 1971.
[10] However Judaism is conflicted on the issue of PoI. When Abraham asks “wilt thou destroy the just with the wicked?” God replies that the entire population of Sodom and Gomorrah is presumptively guilty unless Abraham can find 50 innocent people therein (Genesis 18:20–26) — an inversion of the principle that “it is better that n-guilty people go free than 1 innocent person be punished.” …By contrast, one may interpret Adam’s demand that God punish Eve for tricking him into eating the apple as a demand for a fair adjudication of guilt.
[11] McAuley, Finbarr. “Canon Law and the End of the Ordeal.” Oxford Journal of Legal Studies, Vol. 26.3, 2006.
[12] Van Damme, ibid.
[13] Commonwealth vs. John W. Webster. 59 Mass. 295, 1850.
[14] In re Winship, 397 U.S. 358 (1970)
[15] Stack v. Boyle, 342 U.S. 1 (1951)
[16] Pernell, LeRoy. “The Reign of the Queen of Hearts.” Cleveland State L.R., 1989.
[17] Thayer, ibid.
Joe Lonsdale
General Partner, 8VC
