The maxim, Innocent until proven guilty, has had a good run in the twentieth century. The United Nations incorporated the principle in its Declaration of Human Rights in 1948 under article eleven, section one. The maxim also found a place in the European Convention for the Protection of Human Rights in 1953 [as article 6, section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights [as article 14, section 2]. This was a satisfying development for Americans because there are few maxims that have a greater resonance in Anglo-American, common law jurisprudence. The Anglo-American reverence for the maxim does pose an interesting conundrum: it cannot be found in Magna Carta, the English Bill of Rights of 1689, the Declaration of Independence, or in the Constitution of the United States; and not, I might add, in the works of the great English jurists, Bracton, Coke, and Blackstone. Nevertheless, some scholars have claimed that the maxim has been firmly embedded in English jurisprudence since earliest times.
Claims about the maxim’s Anglo-Saxon roots are sometimes quite stirring and display a peculiarly British capacity to create intellectual Camelots — on their side of the Channel. An English scholar named Clementi gave a talk on the maxim at Göttingen, Germany in 1974. Footnote He informed his continental audience about the maxim’s unique Anglo-Saxon origins. The English devotion to the principle of ‘Innocent until proven guilty’ served, he said, to “emphasize a separation between England and its European mainland in matters of law." With a missionary’s zeal, Clementi propounded the virtues of innocence while being guilty of explicating texts in which the maxim was completely absent.
Clementi did not know that the maxim "Innocent until proven guilty" cannot be found in any English court case or any jurisprudential treatise before ca. 1800 --- at least I have not yet found it in one. He also did not seem to know that the French, in spite of their legal system’s being based on rebarbative Roman jurisprudence, did include an article in the French Declaration of the Rights of Man and Citizen of 1789 stating that "every man is presumed innocent until declared guilty." Footnote These facts raise two questions that will be the subject of this essay: how did this piece of English pragmatism become a part of the Romanist French tradition and how and when did the maxim surface in the Anglo-American tradition?
Before we embark, a few remarks about what we are looking for. We are not looking for the general notion of presumption or assumption of innocence. That notion is remarkably widespread in every legal system that I’ve looked at --- except the most primitive. It may even be there too, but there were no jurists to express the idea. We are also not looking for the modern notion of presumption of innocence in American law. That notion has been the subject of much debate that, as far as I can tell, now centers around the question: what does presumption of innocence mean in the context of the judicial process and how does it differ from reasonable doubt? We are looking for the maxim, “A person is presumed innocent until proven guilty,” and we are looking of the rights of due process that the maxim aphoristically expressed in earlier jurisprudence. By the end of my essay, I hope to have proven that the maxim and the norm it expressed were core principles of earlier jurisprudence, whose original meaning has been eviscerated, or at least radically changed, in modern American jurisprudence. Footnote As this paper will also attempt to demonstrate, the maxim began life as a norm that articulated a cluster of rights protecting litigants. In American law, it has become a notion, an assumption, with very little content.
We can know exactly when the maxim formally entered American law: through a Supreme Court decision of 1894, Coffin vs. U.S. A lower court had refused to instruct the jury that "The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty". The appeal to the Supreme Court was based in part on the lower court's refusal. Footnote
Although the lower court rejected the maxim, the judge did instruct the jury that "Before you can find any one of the defendants guilty you must be satisfied of his guilt as charged in some of the counts of the indictment beyond a reasonable doubt." The lower court then instructed the jury at great length on the doctrine of reasonable doubt and its relationship to evidence. The Supreme Court saw its task as determining whether the lower court had violated the defendants' rights by not instructing the jury on presumption of innocence and whether reasonable doubt was essentially the same as presumption of innocence.
Justice Edward Douglas White wrote the majority opinion. Footnote For a legal historian, his analysis is a dazzling display of legal history --- even if most of it is wrong. To prove the antiquity of "Innocent until Proven Guilty" White cited a story from the late antique Roman historian, Ammianus Marcellinus, and texts from Justinian's Digest and Code, Pope Gregory IX's Decretales, a decretal of Pope Innocent III, Footnote and Giuseppe Mascardi’s De probationibus, all of these works, except for Ammianus, from the continental law. Footnote None of the texts, unfortunately, contained the maxim. Not one of them was from English law.
When White turned to the Anglo-American tradition, he found the principle clearly articulated in a number of nineteenth-century treatises on evidence and criminal law. The jurists White cited were William Wills, († 1860) On circumstantial Evidence, Simon Greenleaf, On the Law of Evidence (1783-1853), and William Best, (1809-1869) On Presumptions. Of these jurists Best is the only one who explicitly states that it is a "maxim of law, that every person must be presumed innocent until proven guilty."